Lynch, Andrew --- "The Intelligence of a Future Day': the Vindication of Constitutional Dissent in the High Court Australia -1981-2003" [2007] SydLawRw 8; (2007) 29(2) Sydney Law Review 195

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The High Court of Australia is an institution whose individual members enjoy significant autonomy from each other.^[1] The importance of its justices being able to decide cases each according to his or her own lights has been frequently stressed.^[2] This individuality is starkest when justices disagree through the delivery of a formal dissenting opinion. It is not, however, limited to those occasions, but is also clearly discernible whenever a minority view is strongly expressed.

While it may be argued that an ability to deliver minority opinions serves to enhance a court’s decision-making processes and also reflects its political standing as an institution in tune with democratic ideals,^[3] neither of those benefits offers much comfort to an individual justice dissenting in any particular case. Rather, from that justice’s point of view, the purpose in giving his or her reasons for reaching a contrary conclusion must not simply be to explain why that has occurred, but hopefully to persuade those who will revisit the question at some later date.^[4] This much is apparent from the form which most minority judgments take in the High Court — they rarely just identify those aspects of the majority approach which they are unable to accept, but invariably seek to provide a comprehensive justification for an alternative resolution. It is also strongly reflected in the mythology surrounding dissents which has tended to emphasise not just their immediate fate as a defeated opinion but, somewhat paradoxically, one which retains an aspirational quality in their ‘appeal to the intelligence of a future day.’^[5]

It is an understandable wish that the wisdom of one’s viewpoint will eventually be appreciated and accepted. There is little evidence to suggest that judges are immune to this condition.^[6] Indeed, in the face of a regular inability to agree with one’s colleagues, a belief that the correctness of one’s position will finally prevail can sustain a judge. Justice Kirby has been very clear in his confidence that some of his minority opinions ‘will be appealing to a different and future time.’^[7] The practice of persistent dissent on an issue is particularly direct in its attempt to secure mainstream adoption of the views expressed in minority.^[8] By refusing to let the court solidify an institutional position, persistent dissent wants the future today. But some argue that this does not come without its own costs to the certainty of the law and even to the authority of the court as an institution.^[9]

Oddly, this tension between the asserted value of minority opinions to the development of the law and the complaint that excessive individualism may be unhelpful, or even damaging, is rarely discussed by reference to practical experience. While recent empirical studies have significantly illuminated the ebb and flow of disagreement on the High Court over the years,^[10] and have also considered those factors that might affect it,^[11] there has not been research indicating the utility of dissent in the longer term.^[12] In particular, there is no body of evidence either way as to the extent to which minority views actually have an impact upon the majority opinion when the court revisits a certain legal question. Instead, the later significance of minority judgments has been a matter left largely to impression.^[13]

The purpose of this article is to redress, albeit only partially, this gap in our knowledge about dissent. Specifically, it assesses the degree to which the effort expended by members of the High Court, in disagreeing over constitutional questions, is rewarded with ultimate vindication. Unlike other areas of the law where a minority opinion can perhaps be seized upon by the legislature and implemented as part of reform to reverse the court’s holding, this is not so easily accomplished in response to constitutional decisions.^[14] The requirement of a referendum to alter the Commonwealth Constitution,^[15] and the practical considerations of taking such a course, means that it is neither lightly undertaken nor likely to be successful.^[16] As a result, the strongest agent for constitutional change remains the court itself, and so it is within the institution that this search for subsequent influence takes place. Put simply, how often have dissents won over a later majority so as to be adopted by the court as the law? And does the answer to this inquiry provide any comfort for those who choose to persist in dissent from the court’s approach on certain issues?

This article will respond to these questions. In Part II, the data set of cases is introduced and the general method of analysis to be applied to them is discussed. Part III engages in an overview of the major areas of disagreement in the High Court’s interpretation of the Constitution, as revealed by the empirical data. In doing so, it suggests which of those are more likely to demonstrate the later influence of minority opinions. By contrast, instances where earlier dissents were abandoned by their authors in later decisions are discussed. Consideration is given to the factors which promote judicial conformity of this sort.

Part IV identifies specific sets of cases in which minority views did not yield in the face of precedent, but were resilient to hostility from the rest of the court. The acceptability of the practice of persistent dissent will be considered through these examples, including the distinguishing features which exist between them. Particular attention is devoted to the court’s longstanding division over the true operation of s 80, the Constitution’s requirement of trial by jury for all federal indictable offences. Part V then considers those occasions during the period under review when, by contrast, the court clearly reversed its opinion in favour of an earlier dissenting judgment.

Lastly, Part VI contains observations as to the overall impact of minority opinions during this time, and suggests that, despite the evidence gathered here as to very infrequent vindication of dissents, a more nuanced interaction of judgments undoubtedly occurs to the benefit of the law’s development.

2. Methodology

In an earlier article, I presented empirical results revealing the patterns of High Court decision-making — both generally and in a subset of constitutional law cases — over a 22 year period from the ascension of Sir Harry Gibbs to Chief Justice in 1981, through to the retirement of Justice Mary Gaudron in early 2003.^[17] Using the same data gathered from that study, it is possible to compile a complete listing of the High Court’s constitutional decisions over this period, indicating the major areas of judicial activity and the level of (dis)agreement in each case. This is a crucial step to tracking the later significance of dissenting opinions, since it enables the identification of areas of constitutional interpretation where a certain continuity of minority opinion may be observed.

Table A (see Appendix) contains all the constitutional matters comprising the source of data for this study. It displays which issues have dominated in the High Court over this period and indicates how the matters in respect of each were resolved — unanimously, by concurrence or with a split court. This basic information assists the present endeavour by identifying likely areas in which minority opinion emerged to seriously challenge the orthodoxy favoured by the majority. The Table enables us to distinguish those areas of constitutional law which have been returned to by the High Court with a steady frequency over the 22 year period, from those which have either given rise to sparse litigation or, while attracting quite a significant amount of focused attention, did so only for a short time.^[18] The cases which pertain to topics which have regularly come before the court over the entire period, and which feature formal dissent, present far more opportunity for a sustained discussion of the issues by the justices, and it is in these circumstances that we might expect to see the rise — and possibly acceptance — of minority opinions.

Lest it be thought that perhaps 22 years is an insufficient time frame in which to observe such reversals, it should be recognised that several important alterations in the court’s constitutional jurisprudence, based upon an earlier dissent, have occurred in much less time. For example, the major methodological shift in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd^[19] occurred a mere 13 years after the first dissents from Isaacs J and Higgins J.^[20] The reversal of the decision in Re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation^[21] in favour of Dixon J’s minority opinion took place only 15 years after, in Commonwealth v Cigamatic Pty Ltd (in liq).^[22] While acknowledging that there may well be exceptional instances where the court revives a constitutional dissent from a much earlier decision, generally the history of the court’s work in constitutional law demonstrates that change happens within the kind of time frame utilised here. Of course the drawing of boundaries means that diligence is required so as to note any dissents issued prior to the period which then went on to find favour during it. Only one such instance is noted here of an earlier dissent being directly relied upon by the court to overrule in 1981–2003,^[23] further supporting the position that the time frame of this study is ample to display the general treatment of dissent by the High Court.

It is crucial to emphasise that Table A is merely a starting point. It does not reveal the reasons for delivery of a dissent, nor does it show the presence of a minority opinion on a matter of interpretation which may lurk under the cover of a formal concurrence in the result of a case. Additionally, due to the multiplicity of issues in many of the cases, they may appear in respect of several constitutional provisions/topics, but to varying degrees of importance in each. But the Table does provide the basis for substantive analysis of specific groups of cases with a view to uncovering this more nuanced information.

Within those groups, resort to the cases themselves is essential in order to assess both the reason for any disagreement and also any connections between minority opinions that might establish a stream of dissent on a particular issue. Although in earlier empirical studies insistence upon a strict definition of ‘dissent’ and ‘concurrence’ has been vital, that has been slightly relaxed here in identifying significant differences of opinion that have had subsequent importance in affecting the court’s institutional position. So, any important minority view contained within a concurring judgment has not been excluded from the analysis which follows.^[24] The criteria are simply that the opinion is able to be identified with sufficient precision and was not embraced by a majority of the bench. However, the form of that rejection need not be outright, nor need the majority have developed a coherent alternative position amongst themselves.

The clustering of cases in Table A has been done almost entirely on the basis of the catchwords and information in the headnote to each case, which identified the constitutional issue(s). This was seen as a suitably objective means of establishing categories in which to group cases which built upon or were interrelated with each other, and within which streams of opinion could be discerned.^[25] Admittedly, that may not always be so — cases may address disparate aspects of the one constitutional area. Accordingly, a substantive consideration of the decisions within each group is also necessary in order to assess them sensibly for continuity of opinion.

There is a degree of commonality between this study and the major work of Harold Spaeth and Jeffrey Segal in charting the influence of precedent upon justices of the United States Supreme Court.^[26] Both are concerned with establishing relationships between decisions in order to observe how justices behave in the face of legal authority with which they disagree. While those authors looked to citation to identify the ‘progeny’ of a precedent, they did not rely upon citation alone as a means of gauging the influence of earlier decisions. Indeed, they could not be more direct in rejecting a correlation between citation and influence.^[27] For that reason, their study does not consider the adoption of precedent by a newcomer to the bench as at all significant, since it is impossible to tell whether the authority simply coincides with the individual justice’s preference on the issue. That is a compelling argument upon which they build their methodology, but the different aim pursued here renders it unhelpful. This is best illustrated by the distinct questions posed by each study. While Spaeth and Segal essentially ask, ‘does precedent actually cause justices to reach decisions that they otherwise would not have made?’^[28] the inquiry here is, ‘how often have dissents won over a later majority so as to be adopted by the court as the law?’ In answering the latter, links between opinions across different eras of the court’s history and reliance upon earlier minority judgments by later justices are crucial in appreciating the role which dissent can play.

In the next Part, an overview of the decisions in Table A is provided, which is then broken down in subsequent Parts to enable identification of significant instances of judicial disagreement. In Part IV, the minority opinions discussed are those which have failed to gain ascendancy. However, Part V identifies those instances where a view initially stated with only minority support has later been endorsed by a majority of the court. The conclusion in Part VI considers the results of this study and makes observations about the significance of constitutional dissent in the High Court.

3. Constitutional Consensus and Disagreement — General Observations

A. The Presence and Nature of Disagreement

On average, the members of the High Court formally divided in a little over half of all the constitutional cases that the court heard across the 22 year period of this study.^[29] When one takes account of the additional likelihood of diverse opinions existing within cases resolved through concurrence, it is true to say that the court disagrees more often than it achieves consensus in constitutional matters. In this light, Peter McCormick’s remark on the Supreme Court of Canada may be even more true in respect of the High Court — it ‘may be primarily in the business of deciding, but it is also in the business of disagreeing.’^[30]

Table A reveals which issues of constitutional interpretation proved noticeably more divisive than others and thus contributed more significantly to the court’s rate of dissent in this area of the law. Prominent amongst these groups of cases were those concerning the interpretation of ss 51(xxi) and (xxii)^[31] (seven split decisions out of 10 taken in combination); s 51(xxix)^[32] (seven split decisions out of 10); s 80^[33] (seven split decisions out of 10); s 90^[34] (eight split decisions out of 10); s 118^[35] (five split decisions out of seven); s 122^[36] (nine split decisions out of 11); and the implied freedom of political communication (nine split decisions out of 12). Other groups of cases in different constitutional areas certainly had their fair share of decisions in which formal dissents were delivered, but disagreement could not be said to be so reliable a feature as it was for the cases in respect of the issues just listed.

In none of the areas in which there was a significant series of cases was there an absence of dissent. The centrality of disagreement to the court’s life, which was indicated by its statistical frequency, is further confirmed by its reach. No area of the High Court’s constitutional work appears to be so straightforward as to preclude alternative interpretations or applications springing up over the course of a few decisions. Admittedly, that must in part reflect the limited likelihood of matters reaching the court which concern issues upon which all its members will agree time after time. Even so, the point remains simply that dissent is widespread across the court’s engagement with the Constitution.

Disagreement must also be distinguished as to its nature. A justice may dissent from the orders of the court on the basis that either the majority’s opinion on the law is not correct, or over matters of application of the law to the particular facts of the case. For present purposes, it is the former that is significant. For obvious reasons, dissents having their origin in the specific facts of a case are highly unlikely contenders for future redemption.

The area that is perhaps the best example of this is that concerning inconsistency between Commonwealth and state laws. In this study, no other area discussed by the court over this time produced more cases than s 109 of the Constitution.^[37] However, dissenting judgments were far from constant (only 13 in 36 cases) and this must undoubtedly be due to the largely settled operation of the constitutional provision in principle (note that 10 of the cases were decided by unanimous judgment). Historically, cases concerned with inconsistency of laws have only rarely featured a division of opinion over the interpretation of s 109 or the tests to be applied. Instead, where there was disagreement, it was likely to be due to differences over the application of the rule to the particular facts. Thus, despite its pre-eminent representation amongst the pool of constitutional cases over this period, we may surmise that this set of cases is not significant so far as the establishment of a pattern of disagreement, let alone one resulting in doctrinal development, is concerned. A similar qualification may be made in respect of the cases discussing s 92, which, since the crystallisation of its interpretation in Cole v Whitfield,^[38] have featured disagreement that, if related to the express freedom at all, has tended to focus on questions of application.

The other noticeably large series of cases is that grouped generically under the moniker of ‘Federal Jurisdiction/Chapter III’. Although attempts have been made to isolate decisions with respect to particular provisions found within Chapter III of the Constitution, this was, given the interconnection of those sections, inevitably a somewhat artificial exercise. Additionally, there are decisions in which the notion of judicial power per se, rather than any specific constitutional text, was determinative of the court’s reasoning. But while this category has proved a usefully broad one in which to deposit such cases, as a consequence it contains all manner of discussions — many of which bear only a tenuous relationship to each other. Those 36 matters, very much more than is generally so in respect of those in other groups, cannot really be seen as successive instalments in a coherent narrative. As a result, tracing an overarching pattern of dissent throughout those decisions is problematic. There are, however, discrete streams of cases within that bulk which are able to be gainfully analysed for patterns of disagreement — those chiefly being concerned with the powers of military tribunals and with the exercise of non-judicial functions by judicial officers.

As stated earlier, in examining the decisions for significant disagreement which had a subsequent relevance (if not impact), all minority opinions — whether concurring in or dissenting from the final orders — were noted. However, it must be admitted that the presence of regular dissents in a series of cases is a strong indicator that the constitutional topic with which they are concerned is one about which very clear lines of division exist. As such, we would expect examples of that sort to yield more striking demonstrations of the rise of minority opinions from obscurity than those topics in which viewpoints are exchanged in the conglomeration of various concurring judgments. That consideration has provided the focus upon the areas discussed further in this paper.

However, before turning to examine instances of persistent and/or vindicated disagreement, it is helpful to acknowledge clear evidence arising from the cases of this period as to the factors which limit dissent’s capacity to stimulate change.

B. The Pull Towards Conformity

It is worth emphasising that the general interplay of judgments across the court’s cases is probably not as common as is popularly perceived. For many of the reasons above, a large number of the 234 constitutional matters were able to be decided on their own terms, without reference to — let alone the continuation of — some perennial debate in the area. Additionally, not every dissent will warrant future attention. After all, the failure to attract majority support must say something about the reasoning contained in the opinion. Obscurity is clearly the fate of many of these judgments, as their authors must surely realise.

Indeed, the conservative ethos of law ensures this outcome. If stare decisis is to fulfil the purposes for which it exists, the opinions expressed by a minority of justices should not be maintained after their clear rejection by a majority of the court. The latter’s position, to which the imprimatur of the institution attaches, should stand free from further challenge. As Brennan J made very clear, ‘since the rationes decidendi of this Court are the law of this country, the Justices of this Court are bound to accept the ratio of a previous decision of this Court as the law’.^[39] While, as earlier discussed, this level of deference occurs not without exception in a court of last resort, especially in respect of its constitutional work, it certainly does happen.^[40]

Amongst the groups of cases in Table A are several examples of a minority view abandoned by its author for precedential reasons alone.^[41] In each there is the express abandonment of a minority position in favour of the orthodoxy — though generally this occurs unaccompanied by any admission of a change of opinion. The values underlying stare decisis appear to be the overriding factor here, rather than the persuasiveness of the majority position.

There are three particularly clear examples of precedent-induced judicial restraint among the constitutional cases of the period considered by this study. Justice McHugh provides two of them in relinquishing the dissenting views he expressed in Georgiadis v Australian and Overseas Telecommunications Corporation^[42] (that legislative extinguishment of a common law right recognised by statute did not amount to an acquisition of property requiring just terms under s 51(xxxi) of the Constitution) and Re Nolan; Ex parte Young^[43] (strictly limiting the jurisdiction of military tribunals established under s 51(vi) to purely disciplinary matters). In respect of both these instances, it is clear that, rather than participate in lingering discord, McHugh J preferred to follow the advice of Justice Jackson of the United States Supreme Court when he said:

The final example of abandoned minority opinion is one that is already very well known, and while similar to those just cited, it has a distinctive force all of its own. They are those minority judgments delivered by Wilson and Dawson JJ in the wake of Commonwealth v Tasmania (Tasmanian Dam Case),^[45] a case in which their Honours’ narrow view of the scope of s 51(xxix)’s power with respect to external affairs failed to attract majority support.^[46] When Tasmanian Dams arose directly on the facts again in Richardson v Forestry Commission,^[47] both Wilson J and Dawson J felt compelled to accept its authority, but made it clear they did so without having been persuaded as to its correctness. While Wilson J only went so far as to add that the argument in the present case had served to strengthen his view that the earlier decision was erroneous,^[48] Dawson J delivered a passionate attack on the reasoning in Tasmanian Dams, reprising the key points from his original dissent.^[49] He then made it very clear that, in accordance with the stance taken by Isaacs J in Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia,^[50] he would have ‘the greatest difficulty ... in deciding that the Constitution said something which I thought it did not.’^[51] However, as the parties had argued the case without challenge to Tasmanian Dams, he assumed the decision possessed authority.

By the time of the next instalment, Dawson J was the only one of the three dissenters in Tasmanian Dams remaining on the bench. While the rest of the court delivered a joint judgment in Queensland v The Commonwealth,^[52] Dawson J dissented. He did so by actually taking a more generous position as to when the external affairs power was to be enlivened, arguing that this was compelled by the broad interpretation of that power from Tasmanian Dams. Yet simultaneously, his Honour affirmed his continued opposition to the reasoning in that case and his willingness to overrule it when the occasion arose.^[53] Justice Dawson’s swansong on the interpretation of s 51(xxix) was his solo concurrence in Victoria v The Commonwealth (Industrial Relations Act Case),^[54] wherein he stated once more (and at considerable length) his objections to the broad view of the power, and lamented its debilitating effect upon Australia’s federal system.

These opinions are a curious amalgam of the acknowledged defeat of a minority view expressed with the stridency of persistent dissent. Although it appears from all three examples considered in this section that judges who relinquish a minority opinion rarely do so because they have been convinced as to the merits of the majority approach, the judgments delivered by Dawson J in respect of the external affairs power display a distinct reluctance to cease the debate. This seems to be a rather strange form of judicial restraint. Any benefit to the stability of the court’s jurisprudence through formal concurrence must surely have been heavily abated by the repeated attacks on the substantive reasoning upon which that approach rests. Nevertheless, precedential constraints were still clearly operative in keeping Dawson J from splitting the court over the question of the binding value of that earlier authority.

These judgments demonstrate the odds against which a dissent must prevail in order to win wider acceptance. If the institutionalised conservatism of the law has such a dampening effect upon the sustaining of minority opinions by their own authors, it is clear that at any time on the court, the pull is to continue strongly in the direction chosen by the majority, without looking back.

C. Foreclosing Opportunities for Minority Opinions

A significant device in the promotion of judicial respect for past precedent has been the court’s practice of requiring leave to be given before a party may even challenge an earlier decision. This plays a clear role in the muffling of minority voices and, as it was adopted in a constitutional case during the period under review, clearly requires consideration here.

This rule of practice was established in the context of the court wishing to discourage repeated attempts to topple the shaky foundations upon which rested the States’ ability to charge licence fees by reference to past sales of goods without offending s 90’s guarantee that the power to levy excise tax is exclusive to the Commonwealth. The cases that enabled that form of state revenue-raising were the trio of ‘franchise cases’ spearheaded by Dennis Hotels Pty Ltd v Victoria.^[55] Citing the States’ reliance upon those decisions in Evda Nominees Pty Ltd v Victoria, the court made it clear that it would not ‘hear full argument on every occasion when counsel wishes to contend that a previous case was wrongly decided.’^[56] The effect of this approach in the area of s 90 was rather ironically to protract uncertainty, as it was apparent that dissatisfaction with the earlier authorities persisted, despite the unwillingness of a majority of the court to reopen them in Philip Morris Ltd v Commissioner of Business Franchises (Vic),^[57] Capital Duplicators Pty Ltd v Australian Capital Territories [No. 2]^[58] and Rainsong Holdings Pty Ltd v Australian Capital Territory.^[59] The aversion to assessing the reasoning of the franchise cases on its merits made it extremely difficult to pursue a principled reconsideration of the concept of excise generally, and stifled very necessary debate until leave was sought and given in Ha v New South Wales.^[60]

As an obstacle to overruling, the requirement of leave clearly impedes the ability of dissenting opinions to amass support so as to bring about a change in the law.^[61] For that reason, it is not without its critics. In Evda Nominees, Deane J, while concurring with the majority that the time was not ripe to reassess the franchise cases, was clear that, in his view,

Justice Kirby has adopted this stance also, but has also explicitly based his objection to the requirement of leave upon its effect on the development of the law through minority opinion:

It is difficult to reconcile his Honour’s comments with those of Brennan J, cited at the start of this section.^[64] Certainly, their Honours appear to take a very different view as to the status of the majority opinion. While Brennan J agreed that there may be value in ‘judicially-expressed doubt about or dissatisfaction with a particular decision,’^[65] the ratio of the majority was, until overruled after being formally reopened, vested with the character of law by virtue of the authority of the court itself. Justice Kirby’s ability to separate the institution from the individuals appears to enable him simultaneously to recognise the court’s duty to uphold the Constitution — which must, presumably, involve a corresponding recognition of its authority in doing so — and yet also the vulnerability and transience of a judicial majority. Maybe this approach is more candid, but it obviously involves a re-ordering of the traditional legal values of consistency and efficiency.

This is a crucial difference in outlook and one which has significant implications for the willingness of a justice to continue to voice a minority opinion. Coalescing the individuals and the court on which they serve means that a refusal to follow earlier decisions can be said to amount simply to a refusal to accept the authority of the law.^[66] But Kirby J’s reluctance to imbue a majority with any character beyond its immediate numerical superiority is to leave open the extent to which its opinion on the law should command allegiance. Such a stance explains why, in spite of the strong pull which precedent clearly exerts upon High Court judges, there has simultaneously existed a lesser, yet notable, tradition of persistent dissent. It is to occurrences of that practice in the constitutional cases under review that we now turn.

4. The Diehards — Persistent Dissent

Since the sustained efforts of Isaacs and Higgins JJ, in calling for the overthrow of the implied immunities and reserved state powers doctrines, met with such spectacular success in the Engineers’ Case,^[67] the practice of persistent dissent has laid claim to a strong legitimacy in the field of constitutional law. While, as just noted, stare decisis remains a judicial ideal, it has been difficult to reject outright the merits of continued opposition to a prevailing view — given that the decision which established the central interpretative principles applied by the High Court to the Constitution appears to owe so much to just that judicial strategy. In light of the significance of the Engineers’ Case in effecting a shift in constitutional methodology, it would seem fair to say that it remains the court’s greatest reversal. It is impossible to deny the importance to that story of the persistent minority opinions in earlier cases.^[68]

With such a powerful and prominent example before them, it is not difficult to understand the temptation amongst justices of the court to refuse to yield on certain issues and instead to hold out for the balance of the court to tilt towards the ultimate acceptance of their view. Subsequent instances where minority opinion — even when not persistently expressed^[69] — gathered support (much of the history of the court’s interpretation of s 92 is particularly demonstrative of this as a continual evolution) has fed the perception that dissents could, under the right circumstances, obtain majority approval. The odds of bringing off such a revolution in the law might well be enhanced by a refusal to compromise, even in the interim. But to close the door on the opinion would likely result in its consignment to obscurity.

It should be made clear that in looking for examples of persistent dissent, some heightened degree of coherency between the opinions is required. There are, as Table A indicates, ongoing disagreements amongst the justices as to how various provisions are to be interpreted, but this by itself is not enough. For example, almost all the cases in which the court considered the Commonwealth power over territories in s 122 resulted in a split bench. And while the reasons for that might be simplistically reduced to division over the place of territories with the federal structure otherwise established by the Constitution, it is clear that the nuances of that question and the disparate factual circumstances giving rise to the court’s examination of it, have forestalled the emergence of a regularly stated minority opinion from any particular justice or coalition of justices. The general occurrence of disagreement over a particular constitutional provision does not necessarily possess the level of consistency and frequency sought after when identifying a steady stream of minority opinion.

Over the period under review here, it was possible to trace six series of cases which featured an appropriately clear strain of minority opinion repeatedly expressed in the face of continued rejection by the majority. However, in only one series have the dissenting voices had an impact upon the court’s later development of the law in that area. In the other five groups of cases, the reception of the minority views in each has been about the same — that is to say, they have remained completely unrequited.

A. Persistence — a Tool of Dynamism and Conservatism

Looking at all the constitutional matters decided by the High Court over the period under examination, five streams of opinion were stated repeatedly by minority voices and yet failed to attain wider support. They may be listed succinctly as follows:

In the next section, I will examine in some detail the last of these, as I think the dissents on s 80 demonstrate a rather perverse usefulness that is worth closer examination. But some general comment as to all five streams of minority opinion is also appropriate.

Unsurprisingly, the strong common feature across all instances of persistent dissent is an abiding conviction as to the correctness of one’s own minority opinion. This is only to be expected. But what distinguishes the course of these judgments from those occasions when a minority abandons its position? It is not, as seen in the examples considered earlier, that justices who surrender to the majority position have necessarily changed their mind — their belated concurrence with the majority was often accompanied by a statement still maintaining that their earlier views were correct. So when will a justice feel justified in delivering repeated dissents from the court’s approach?

Some light may be shed on this puzzle through considering the difference between those earlier examples of acquiescence and some — but not all — of those in which persistent dissent was present. In all the cases in the first category, the original dissent was from a majority opinion which, in the absence of any earlier and contrary precedent, had established its claim to legitimacy. The dissenters, having failed to win sufficient support on the occasion of the question’s first definitive response to the issue, and without any competing judicial authority with which to appeal to the obedience of the rest of the court, had little ground for continued opposition beyond their belief that the majority was wrong. Clearly, that alone was seen as insufficient.

The first two instances of persistent minority opinion identified above both involved Dawson J as a central figure, and occurred in quite different circumstances. In contrast to those occasions on which his Honour acquiesced, in neither the approach to s 51(xx) nor s 90 were the dissenters merely continuing to express their interpretation despite it having been rejected by the court. Rather, the dissent was seeking to maintain a line of reasoning from earlier antecedents which had either commanded attention in the court (this is especially true of Dawson J’s opinions in respect of s 90, which argue for allegiance firstly to Bolton v Madsen,^[74] and then to Peterswald v Bartley^[75] ) or had at least not yet been clearly dismissed by a majority (Dawson J’s continued support in Re Dingjan^[76] for the narrow approach to s 51(xx) may be justified given that only three of the majority judges in Tasmanian Dams reached their decision by rejecting it).^[77] In short, the maintenance of a minority view was sustained by appeal to either a still viable alternative or a previous decision which had possessed strong precedential value.

However, the dissents of Deane and Gaudron JJ in respect of both choice of law and military tribunals occurred in different circumstances. Their Honour’s position on s 118 met with clear disfavour from the majority and, as a novel approach to the problem, could not point to any earlier authority as a rejoinder to the court’s rejection. While the situation in regard to the military tribunals was arguably dissimilar given the majority’s internal fragmentation,^[78] it was clear that there was still broad consensus amongst it which disfavoured the restrictive approach of the dissenters. Indeed, as McHugh J said when he abandoned his dissent on that issue in Re Tyler, although

Again, there was no earlier judicial precedent upon which the dissenters could rely, other than their previous dissents. Instead, the authority to which Deane and Gaudron JJ appealed in both instances was none other than the terms of the Constitution itself. As Isaacs J in Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia^[80] and Barwick CJ and Aickin J in Queensland v The Commonwealth^[81] argued, a justice’s ultimate responsibility is to the Constitution itself, not to the opinion of other justices as to its meaning.

It is clear, then, that persistent dissent can be a vehicle for two very different, oppositional forces in constitutional law. Those seeking to defend the status quo may well be forced into a pattern of persistent dissent as they attempt to stay the hand of progressivism by urging respect for the court’s earlier decisions. This would seem to be an entirely legitimate course of action, being based as it is upon adherence to precedential values. On the other hand, repeated dissent on an issue whereby the justices concerned are urging upon the rest of the court a new approach involves a more problematic tension between different aspects of the judicial role. Persistent dissent as a tool for dynamism in interpretation obviously involves a refusal to accept both the existing precedents and the institutional authority of the court as a law-giver. In an attempt to overcome these objections, recourse is made to the highest authority of all — the Constitution itself. Generalisations about persistent dissent must be wary of overlooking these crucial distinctions. Remarkably different conditions and motivations give rise to repetition of a minority opinion. The legitimacy of the practice cannot be usefully appraised or condemned without consideration of the specific circumstances in which it is employed.

One may, however, still pass comment on the effectiveness of dissent in either sense in which it may operate. It might be conjectured that persistent dissent in favour of a new direction in the law is more likely to prevail eventually than when it is employed as a conservative tool. There are basically two reasons for this suspicion. First, if those arguing for the continued support of earlier authority are already in a minority, it seems that the approach which they seek to defend has already had its day. Having lost support, the chances are that the slide will inexorably continue. Second, those justices who maintain a minority opinion in favour of a novel development because they see it as demanded by the terms of the Constitution are not likely to abandon their attempts at persuasion and surrender to the status quo. On the other hand, those engaged in repeatedly defending an earlier authority clearly possess a set of judicial values which will strongly compel them to accept a reversal of it by a clear majority of the court if that comes to pass.^[82]

B. A Case Study on Persistence — The Right to Trial by Jury

The High Court’s fracture over the interpretation of the Constitution’s guarantee of trial by jury is long standing, and is not simply confined to the sample period of this study. While the stream of dissent remains unrequited, thus justifying its inclusion amongst the groups of cases considered in this part of the paper, these cases demonstrate the extent to which such opinions may nonetheless exert real influence over the orthodox approach.

Section 80 of the Constitution provides, inter alia, that the ‘trial on indictment of any offence against any law of the Commonwealth shall be by jury.’ The High Court’s approach was firmly set in R v Archdall and Roskruge; Ex parte Carrigan and Brown^[83] when it upheld sections of the Crimes Act 1914 (Cth) which enabled trial for an offence attracting a maximum penalty of one year’s imprisonment to be by court of summary jurisdiction. Without opposition, the court was of the view that the Commonwealth Parliament was able to determine the extent of s 80’s guarantee by designating offences as indictable or not, as it saw fit.^[84]

Despite the resolute nature of the court’s pronouncement in Archdall, several justices have since tried to challenge this approach, and in so doing, to invest the words of s 80 with seemingly more purpose than most of its creators were prepared expressly to admit.^[85] The most significant of these assaults upon the orthodoxy remains the very first. In R v Federal Court of Bankruptcy; Ex parte Lowenstein,^[86] Dixon and Evatt JJ dissented from a reading of the section that, in their eyes, rendered it without substantive value, and amounted to a mockery of the Constitution.^[87]

Their Honours sought to give substance to the identification of an offence as one triable on indictment by requiring that the potential liability of the offender be to a term of imprisonment or to some graver form of punishment.^[88] This attempt to constrain the legislature’s power of classification was not supported by the other members of the bench. In the sporadic opportunities for reconsideration of the matter which arose after 1938, the court was clearly disinclined to be persuaded by the arguments of the dissenters in Lowenstein.^[89] Reliance upon the pithy opinions of Archdall was the tenor of its approach on those occasions when it returned to s 80^[90] — though cracks began to reappear.^[91]

Until the commencement of the period under study in this paper, the dissent of Dixon and Evatt JJ had received express support only from Murphy J in obiter.^[92] But it was a secure piece of the s 80 landscape. The topic apparently could not be discussed without acknowledging the existence of that contrary view. This was particularly so given the absence of any real attempt to explain the provision’s purpose under the orthodox interpretation.^[93] The cases grouped by Table A as concerned with s 80 demonstrate this starkly — and contain substantial new growth in the line of dissent on this aspect of the Constitution’s guarantee of trial by jury.^[94]

In the recent era, the chief proponents of a reinvigorated approach to s 80 have been Deane J and Kirby J. In his dissent in Kingswell v Regina,^[95] Deane J was keen to point to the inadequate foundations upon which the earlier authorities rested, saying ‘one searches in vain ... for any coherent statement of a line of reasoning leading to that conclusion.’^[96] Instead, Deane J acknowledged the persuasive power of the minority opinion of Dixon and Evatt JJ in Lowenstein. He shared entirely in its reasoning as a basis for rejecting the Archdall approach, saying it was ‘unnecessary to go beyond [it] to demonstrate the error of their Honours’ assertion [in Archdall] that the rejection of the argument based on s 80 needed no exposition.’^[97]

But while endorsing the Lowenstein dissent’s dissatisfaction with the majority approach to s 80, Deane J was unable to accept its requirement that the provision guarantees trial by jury whenever the accused faces punishment by a term of imprisonment. He agreed that seriousness is the key factor which determines the scope of s 80, arguing that this is what the framers intended through use of the words ‘on indictment’.^[98] Initially, his Honour said the question turned on whether dealing with the offence summarily is ‘appropriate’ — a question of law to be determined by the courts, rather than by the legislature.^[99] But he ultimately laid down a more precise standard — that of a jail term of over a year’s duration — as the identifying feature of an indictable offence.^[100]

The latest dissenter from the orthodoxy of s 80 is Kirby J, though interestingly his destiny as such was not made immediately apparent. The court’s consideration of s 80 was certainly more frequent in the 1990s than it had been in earlier decades, but the focus in the cases of Cheatle v Regina,^[101] Re Tyler,^[102] Byrnes v Regina,^[103] and Katsuno v Regina^[104] was not on the legislature’s freedom to determine the indictable nature or otherwise of offences for the purpose of s 80. It was not until Re Colina; Ex parte Torney^[105] that the issues enabled Kirby J to express support for the earlier dissents of Dixon and Evatt JJ in Lowenstein and Deane J in Kingswell. His Honour also included Murphy J’s remarks in Li Chia Hsing v Rankin as one of the court’s ‘dissenting voices’ on this question.^[106]

Justice Kirby’s opinion in Re Colina could not have been more explicit in its acknowledgment of the influence of earlier dissents — and it presents itself as a very conscious and clear continuation of those earlier views.^[107] In accepting Deane J’s modification from Kingswell as to a serious offence being one which attracts a maximum penalty of imprisonment over one year, Kirby J avoided contributing to a perception that the challengers were splintered over what precisely ‘on indictment’ in s 80 is to mean.^[108]

The refusal to accept that the framers could have intended s 80 to operate at the direction, as it were, of Parliament, is a strong point of continuity among all these minority voices. The centrality of this factor to the dissent of Dixon and Evatt JJ in Lowenstein, and Deane J’s incredulity on this point, was echoed by Kirby J in Re Colina.^[109] Other members of the court, such as Callinan J, have been content to express unease over the orthodox interpretation while signalling, however, that they are not open to persuasion that a different view was preferable.^[110]

The minor rumble of dissatisfaction from Callinan J is interesting, not because it was ever too likely to have turned into a dissenting view, but because it further demonstrates that the orthodox position, if it is ever to be totally free of doubt as to its legitimacy, must find stronger grounds of support than precedent alone. From the cases of the period under review, two majority judgments in particular are distinguished by the attempt of their authors to dispel the disquiet over the apparent oddity of the framers drafting a provision which was so deferential to the power of the legislature. Both have done so by ascribing to the section a purpose that they say has been fulfilled.

In Brown v Regina,^[111] Dawson J said that he thought the framers’ restriction of the right to trial by jury on indictment was intended to avoid the uncertainty of the American precursor, Article III s 2(3), which had required the Supreme Court to draw difficult distinctions between serious and minor offences so as to determine the availability of a jury.^[112] The use of indictment as an indicium of seriousness indubitably gives the Commonwealth the ability to grant or withhold trial by jury as it pleases, but Dawson J pointed out that the Australian experience to date has not demonstrated any difficulty arising as a result of the framers’ faith in Parliament to make the call.^[113]

The other member of the court in these cases who makes a principled defence of the majority’s interpretation is McHugh J. In Cheng v Regina,^[114] the court was invited to reconsider Kingswell. While a majority of the bench chose to accept the earlier decision as authority on the ‘wider issue’^[115] of Parliament’s ability to determine which offences are to be tried on indictment and which are not, at least until a more suitable case came along,^[116] McHugh J saw fit to consider the arguments, perhaps in light of Kirby J’s fresh addition just the year before to the court’s dissenting voices on this question.

Justice McHugh seems to take a less generous view of s 80 than Dawson J when he concedes not only that its literal meaning produces a ‘mere procedural provision’^[117] but that this actually accords with its purpose. But it is clear that the difference is more one of style than substance. Despite the lack of any citation, McHugh J’s general agreement with Dawson J’s opinion in Brown is evident when he concludes that ‘[t]he words of s 80 were deliberately and carefully chosen to give the Parliament the capacity to avoid trial by jury when it wished to do so. The current and traditional interpretation of s 80, therefore, gives effect to the purpose of the section.’^[118] His Honour’s conclusion that s 80 is ‘not a great guarantee’ and remark that this result is ‘unlikely to be acceptable to many civil libertarians’^[119] would probably be viewed as overly pessimistic by Dawson J. But they are essentially agreed as to the purpose behind the provision. It is important to appreciate that in arguing that it has a purpose, they reject the bleak futility of Clifford Pannam’s view,^[120] which has probably only encouraged the dissenting justices to actively attribute a function to the section which its words could not easily bear.

This brings us, ultimately, to the task of assessing the merit of the interpretation which the minority opinions would make in respect of s 80. In Cheng, McHugh J was keen to stress that reading the guarantee as applying to ‘serious’ offences (in all the various formulations which the justices have used to convey that basic idea) would leave the court without any objective means of determining when the section was to operate and allow its individual members to follow their own instincts in that regard. The attempts by both Deane J and Kirby J to give ‘seriousness’ a definite barometer in the form of a penalty of maximum imprisonment over one year fails to address this complaint. The use of such a threshold can only have importance as a means of deciding with certainty when an offence is ‘serious’. But where does that qualification enter into understanding s 80 at all? The framers chose a different indicium with the purpose of giving Parliament the final say. However, once a dissenting justice has dismissed those intentions, the section, as we have seen, becomes something into which he tries to pour meaning.

Justice Kirby has attempted to justify this sort of exercise in respect of ‘the application of a disputed constitutional provision.’^[121] But this fails to convince. The argument that the text of s 80 requires augmentation due to its status as a ‘disputed constitutional provision’ is a wholly circular one. It suggests that the existence of persistent dissent itself means that a provision which is otherwise regarded as perfectly clear must be teased out for further nuance — despite the solidity of the majority position that simply no further qualification or extrapolation is required, or indeed permissible.^[122]

In Cheng v Regina^[123] McHugh J argued persuasively that when ‘one looks at text, history or purpose, the answer is the same: the approach to the construction of s 80 accepted by the majority in Kingswell and ... in earlier cases is correct.’^[124] A desire, despite the synthesis of these considerations, to confer upon the provision a more independent operation is, as Callinan J admitted, appealing. But, it cannot withstand the objections that to do so requires an illegitimate exercise of judicial power.

In 1997, Michael Coper said that the ‘long history of respectable dissent in favour of the broader view of this guarantee’ led him to suspect that ‘today’s heterodoxy will become tomorrow’s orthodoxy.’^[125] Given the latest manifestation of this debate on the court, that prediction may need reassessment. Certainly, the poorly elucidated reasoning underlying the orthodox view from Archdall and related cases such as Bernasconi has merely served to fuel dissent from that approach.^[126] Although Kirby J has continued that tradition of dissent on the question of the strength of s 80, McHugh J’s contribution in the most recent round of the debate means that the majority view has now been stated in a way that, perhaps for the first time, responds to the fundamental source of dissatisfaction by asserting a clear purpose to the text as it appears.^[127] The fact that on this occasion the court was able to consider freely the evidence of the Convention debates as an aid to understanding the provision has only provided strength to McHugh J’s riposte. A professed aversion to originalist methods is no response to this interpretation, as Dan Meagher has shown, since the text itself so evidently routs any reading to the contrary.^[128]

Given the frequency with which the Gleeson court has revisited the area, redemption of the dissenting judgments on the central question of s 80’s operation appears unlikely at any point in the future, despite Kirby J’s confidence that this will ‘eventually’ occur.^[129] The minority opinions in this area have enjoyed none of the success in influencing a change in the court’s institutional position that they have so ardently advocated. Instead, there is simply a long line of decisions containing what Richard Primus would call the canon and anti-canon of s 80’s interpretation.^[130] The canon — the orthodoxy from Archdall — has remained impervious to the blows which justices as diverse as Dixon, Evatt, Murphy, Deane and Kirby JJ have sought to inflict. The court is simply not for turning.^[131]

C. Persistence — Valuable Nonetheless?

Although the minority opinions in the s 80 cases offer little, if anything, to the court’s direct development of the law, it would be a mistake to assume that they have brought little benefit to the High Court’s interpretation of that provision. Perhaps more so than the other streams of dissent identified in this Part, the opinions here demonstrate how dissents may provide a valuable service in demanding better reasoned judgments from the majority. The strength of the orthodox interpretation of s 80 has, it is fairly plain to see, been improved upon remarkably since the terse, self-satisfied opinions of the Archdall decision were delivered in the absence of any contrary view. Although the Lowenstein dissent of Dixon and Evatt JJ failed to spur the rest of the court to produce a more compelling case for its approach, it did stand to ensure a sense of lingering disquiet with the basis of the traditional position. In Kingswell, Deane J seized upon the fact that the Lowenstein dissent ‘remains unanswered’.^[132]

The two majority opinions (Dawson J in Brown and McHugh J in Cheng) which put by far the strongest case for the court’s interpretation of s 80 are also those which most directly seek to respond to the arguments of the dissentients. This should not be a surprise. An opinion which responds to and refutes — rather than simply dismisses — the claims of those who disagree is bound to be more convincing. Of course, as Mark Kadzielski and Robert Kunda pointed out, strengthening the majority position in this way is hardly a motivation for the dissenting judge,^[133] but that is not to the point. Those proposing an alternative approach must make a case for it — even when, somewhat unfairly, the majority has simply asserted their view without much exposition. If in doing so, the dissenter’s arguments serve to provoke from members of the majority a more vigorous and compelling set of reasons for their stance, then that is all to the good. In acting in this way the court is engaging in protracted and public deliberation. The result of this kind of productive use of disagreement amongst the court’s members is to provide the community with decisions based upon transparently stronger reasoning. The dissenters in these cases — from Dixon and Evatt JJ through to Kirby J — have fulfilled an important role in extracting a more principled and convincing explanation of the traditional interpretation from its adherents. So although these cases are considered as an example of where dissent has not been vindicated by a change in the court’s position, they suggest that a minority opinion that has not been ignored cannot be said to have been of no effect upon the law.

Nevertheless, and to return to those few central points of commonality shared by occurrences of persistent dissent, this study makes it apparent that the success of overthrowing the orthodoxy through the repeated statement of a minority opinion is far from assured in practice. In fact, subject to what follows in Part VI, the ability of a stream of dissent to bring about a reversal in the law must be properly seen as highly unlikely, and such reversals when they do occur must be explained in part by the presence of other considerations.^[134]

5. The Redemption of Minority Opinions

The suggestion that persistence is of very limited use in securing the acceptance of a minority opinion is further borne out by a consideration of those instances where the court has changed its position in order to embrace such a view. Across the course of this study, only three occasions were identified where the court expressly adopted the reasoning of a dissenting judgment so as to alter constitutional principle. While the third instance of redemption is complex, the first two instances of redeemed dissent considered in this Part accord with the classic perception of a dissent which, after a period of some dormancy and neglect, has formed the basis of a later reversal. Significantly though, in neither case had the minority opinion been stated previously more than once.

A. Section 117’s Guarantee of Non-Discrimination

The first such redemption is actually of an opinion delivered in a case eight years prior to the time frame of this study. The dissent in question was authored by Stephen J in Henry v Boehm.^[135] That case considered the effect of the constitutional guarantee against discrimination on the basis of State residency in section 117.

In the 1904 decision of Davies and Jones v Western Australia^[136] the court had effectively robbed that provision of much significance by allowing discrimination based upon some other criteria in addition to residence, such as domicile. The formalism of that decision was emulated by the majority judgment in Henry v Boehm, which found that a residency requirement in order to be admitted to legal practice in South Australia was not discriminatory, as residents and non-residents of that State were under the same obligation. The absurdity of denying the very real practical disadvantage to which this subjected a non-resident of South Australia was highlighted in the minority opinion of Stephen J.^[137]

Essentially the same kind of law, in the same professional context, was challenged in Street v Bar Association (Qld).^[138] This time, the court unanimously found discrimination within the relevant sense of that expression in s 117. Although there were varying degrees of emphasis and opinion as to the future application of s 117, all members of the court acknowledged the fundamental correctness of Stephen J’s earlier dissent and endorsed it in overruling the decision of Henry v Boehm.^[139]

B. Section 51(xix) – Parliament’s Power to Declare an ‘Alien’

The story of the second instance of redeemed dissent is more complicated. It concerns the interpretation of the Commonwealth’s power to make laws with respect to ‘naturalization and aliens’ in s 51(xix). In the case of Pochi v Macphee,^[140] Gibbs CJ led the court in saying that while Parliament cannot determine the extent of the power in s 51(xix) by defining ‘aliens’ to include persons who could not possibly answer that description, it could ‘treat as an alien any person who was born outside Australia, whose parents were not Australians, and who has not been naturalised as an Australian.’^[141] On this understanding, Parliament could insist upon a person’s status as an alien regardless of how long they had lived in the Australian community. Divesting oneself of that status could only be achieved through the formal process of naturalisation by obtaining citizenship.^[142]

Pochi was weak authority, having only been decided by four justices and with Murphy J not sharing entirely in the reasons given by the rest of the court. But, in any case, changes to the citizenship law, with particular effect upon the status of British subjects, necessitated further consideration of Parliament’s power to determine the identity of ‘aliens’ in Nolan v Minister for Immigration & Ethnic Affairs.^[143] Nolan was a non-citizen but a subject of the Queen, who had resided in Australia since 1967. The Commonwealth sought to deport him under s 12 of the Migration Act 1958, which applied to non-citizens who had been convicted in Australia of certain offences. The majority of the court applied Pochi to find the provision valid under s 51(xix). Although such a view would not have been taken in earlier times, on the reasoning of Gibbs CJ cited above, Parliament was certainly capable of including an unnaturalised British subject within the constitutional meaning of ‘alien’. Such a development accorded with the development of a distinct Australian citizenship against the backdrop of Australia’s growth in independence as a nation.^[144]

Justice Gaudron dissented and argued that as Nolan was not regarded as an alien at the time of his arrival in Australia — British subjects having been awarded a special status until as recently as amendments to the Australian Citizenship Act 1948 (Cth) taking effect in 1987 — he could not now be treated by the Commonwealth as falling within that description.^[145] Her Honour admitted that s 51(xix) would carry a power to reverse the process of naturalization but said that could not be broad. In particular, she argued that:

In stating that view, Gaudron J was careful to ask whether the pithy test offered by Gibbs CJ for persons whom the Commonwealth is entitled to treat as aliens was intended to apply also to those who, although non-citizens, had also acquired non-alien status before Parliament sought to deal with them under s 51(xix).^[147]

Justice Gaudron’s dissent was viewed favourably by a majority of four Justices, and Nolan was overruled in Re Patterson; Ex parte Taylor.^[148] That majority was comprised of separate concurrences from Gaudron J herself and McHugh, Kirby and Callinan JJ. The case concerned an attempt by the Minister to deport a non-citizen British subject who had arrived in Australia as a child in the late 1960s, and thus it bore a strong echo of Nolan. While Gaudron J applied her reasoning anew to these facts, the other members of the majority on this issue, whilst certainly agreeing with her Honour that Nolan was wrong, each developed their own view as to when it was that British subjects ceased to be equated with non-aliens for constitutional purposes. It is important to note that although her Honour’s dissent was influential and approved of in comparison to the reasoning of the Nolan majority, its redemption did not extend to it being simply adopted by those who overruled the earlier authority.

The diversity of those opinions, combined with the decision of a majority of five justices to find in favour of the applicant on the basis of jurisdictional error due to facts relating to the making of the decision to deport, has had significant consequences for the authority accorded to that part of Patterson which overruled Nolan. The triumph of Gaudron J’s dissent has proven to be short-lived. Although the final case in this study involving interpretation of the aliens power, Re Minister for Immigration and Multicultural Affairs; Ex parte Te,^[149] did not concern the status of British subjects, hints were made that Patterson was highly vulnerable in its contribution to that question.^[150]

Those hints did not take long to bear fruit. Since the cut-off date (Gaudron J’s retirement) employed by this study for the collection of a sample of cases, the overruling of Nolan has been reversed and its majority opinion is once again law. The circumstances for a direct challenge to Patterson were presented in Shaw v Minister for Immigration & Multicultural Affairs,^[151] involving a deportation order against a British subject who had arrived in 1974 and who had not been naturalised. Despite the very clearly expressed decision by the majority of four in Patterson to overrule Nolan, Gleeson CJ, Gummow and Hayne JJ had this to say:

Despite the diversity of their individual approaches in the earlier case, Justices McHugh, Kirby and Callinan uniformly repeated their dissatisfaction with the reasoning in Nolan. The replacement of Gaudron J with Heydon J was crucial in the swing away from the Patterson majority and drew the following comment from Kirby J:

Although, of course, the vindication of Gaudron J’s dissent in Patterson was itself surely assisted by a changed court, there is something in his Honour’s lament. Indeed, in light of the rapidity with which the pendulum has swung over this question arising under the aliens power, it is of little surprise that even members of the court have difficulty associating the majority position with an authoritative institutional pronouncement.^[154]

C. The Implied Freedom of Political Communication

A detailed unpacking of the complex caselaw which has seen the development of the constitutionally implied freedom of political communication is clearly beyond the scope of this article. But it is apparent that the court’s adjudication in these cases has comprised a form of judicial conversation in which all positions have been subjected to counter-argument and persuasion. The law in this area did not arrive fully formed. Rather, in keeping with the common law tradition, it was fashioned through the application of the concept to differing fact situations in order to test the limits and consequences attendant upon its use.

The member of the court whose judgments best demonstrate this is Brennan J (later Brennan CJ). From an initial position of basic agreement over the existence of the freedom in Nationwide News Pty Ltd v Wills,^[155] through a drift to dissent mainly on the facts in Australian Capital Television Pty Ltd v The Commonwealth^[156] but extending to conceptual disagreement with the developments thrown up by Theophanous v Herald and Weekly Times Ltd,^[157] reaching a stance of objection to the core of the implication in McGinty v Western Australia,^[158] and culminating in the ascendancy of much, but not all, of his earlier views in the unanimous opinion in Lange v Australian Broadcasting Corporation,^[159] Brennan J found himself constantly reassessing the implication and the proper role and place of the freedom in the Australian legal system. In doing so he found himself in both the majority and minority camps, but rarely in total agreement with those he found in either. His Honour’s contributions thus show a remarkable level of movement and accommodation — something which the justices as a group ultimately demonstrated in the production of the Lange judgment.^[160]

The only judge whose earlier opinions are perhaps more observable in the law as it now stands is McHugh J. Justice McHugh’s opinions in these cases are marked particularly by their steadiness. It is true that the Lange opinion rejects limitations which his Honour had previously favoured, so as to prevent the operation of the freedom outside federal election periods^[161] and upon the shape of the common law of defamation.^[162] However, while those came to pass, it was McHugh J who provided the lasting basis for the freedom with his calls for an implication to be made solely from the relevant text rather than the principle of representative government itself.^[163] The acceptance of this foundation may not have resulted in the freedom adopting the form which McHugh J favoured (though certainly it prevented any lasting suggestion that it was a personal right)^[164] but it did ensure that it finally attained a legitimate footing in the eyes of the entire court, making it more resilient to attacks from newcomers like Callinan J than would otherwise have been the case.^[165]

Both Brennan CJ and McHugh J were often, though not always, writing from a position of formal dissent. While the fluidity of principle which pervades these cases as a set means that formal classification of the judgments is far from the whole picture, it would be wrong to ignore the contribution which the minority opinions surely had in the results of litigation. This is particularly clear in respect of the pair of decisions from 1994, Theophanous and Stephens. While the minority trio of Brennan, Dawson and McHugh JJ had earlier appeared in Australian Capital Television v Commonwealth,^[166] Brennan J’s dissent in that case was largely on the application of the law (about which he had substantial points of agreement with the majority) to the facts. But in Theophanous, while there were obvious distinctions between the reasoning of the majority with Mason CJ, Toohey and Gaudron JJ on one hand and Deane J on the other, and also amongst all three dissenters, there is a basic division over the parameters of the implied freedom which explains that 4:3 split. Brennan, Dawson and McHugh JJ’s attainment of majority status in Cunliffe v The Commonwealth^[167] through the addition of Toohey J on the facts does not alter that situation, but only masks it from formal view. The truth remains that much of what is established as orthodoxy in Lange derives from the dissenting opinions delivered in Theophanous and Stephens, and minority opinions held whilst actually being in concurrence with the majority on the result in cases such as Cunliffe and Langer v Commonwealth.^[168]

These cases illustrate the complex contribution frequently made by dissent to the law. They display a highly transparent level of deliberation amongst the court’s members. This is not established by the mere holding of different opinions, but rather, by the way in which those opinions clearly interact. There is real judicial dialogue occurring. For example, the majority in Theophanous sought to refute the substance of Dawson J’s dissent in ACTV against the existence of the implied freedom, which focused upon the drafter’s intentions and the absence of a bill of rights. This debate has been rerun in the judgments of Kirby and Callinan JJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd^[169] and Roberts v Bass.^[170] Additionally, and more importantly, these exchanges can be seen to lead to changes in judicial opinion. Aside from the compromise in Lange itself, the shifts in the stance of Brennan CJ are an excellent example of this — particularly his endorsement in McGinty of McHugh J’s more limited view of the implication.^[171] The way in which the judgments of the court interact is strongly beneficial to the clarity of the cases as a whole. Propositions require the defence of their makers — argument by assertion is exposed for weakness.

It is evident also that the minority opinions exercised a substantial impact on the shape of the law as it presently stands. This was not often in the way of pushing the boundaries of change. If one credits Murphy J with an early influence in the development of an implied freedom of communication^[172] it would doubtless be characterised in that manner, the impact of the dissents penned by Brennan J, Dawson J and McHugh J was not progressive in nature. Rather, they served — particularly the more constructive and engaged opinions of Brennan J and McHugh J — in the tradition of Lord Radcliffe when he said that a dissent could be used ‘to try to limit what you regard as an unsatisfactory line.’^[173] The opinions of their Honours curbed the bolder experimentation of the majority, whilst not risking irrelevance by refusing to partake in the necessary conversation. This last comment is not to criticise the approach of Dawson J. His Honour’s persistent resistance to the emerging implication^[174] remains a legitimate response and certainly accords with the majority’s total dismissal of the idea when promoted by Murphy J in earlier years.^[175] And, of course, if his Honour continued to believe in the fallacy of the implication, then ongoing dissent would be a viable option. However, it remains fair to acknowledge the very limited impact of such an approach if the rest of the court is determined to settle upon some form of implication. In many ways, Dawson J’s most effective opinion over these cases is his dissent in Langer, in which he applies the freedom in the face of resistance from the majority.^[176]

This group of cases also contains two clear instances of judicial restraint. There is Deane J’s curious appendix to his opinion in Theophanous which simultaneously asserts the correctness of his approach and sets it aside so as to provide a useful, coherent majority on the result.^[177] And of course, there is the evident compromise from all justices in order to produce the unanimous opinion in Lange. The individualism which feeds dissent was necessarily suppressed in order to achieve that unified statement of the law.

It is ultimately impossible to separate the law on the implied freedom of political communication from the permutations in judicial disagreement. The dissenting opinions in these cases — and the array of minority opinions generally — are not a sideshow to the erection of a new constitutional doctrine. Rather, they are at the heart of that very process. Ironically, the court’s settlement of the freedom in Lange owes an enormous debt to the lack of consensus that preceded it. But it was patently obvious almost immediately thereafter that Lange was not the final page — if one can ever be said to reach such a thing in any area of law. The refinement of that principle through application and possibly extension will doubtless follow the pattern of occurring through transparent diversity. The indicators are that this process has already begun.^[178]

6. Conclusion — The Impact of Minority Opinions

Does all this amount to a conclusion that over this particular 22 year period the only minority opinions in constitutional law which have been convincingly adopted later by the High Court are that of Stephen J in Henry v Boehm and those delivered in the implied freedom cases? Has the abundance of minority opinion which has been expressed over this time — recall, roughly 50 per cent of constitutional cases contained dissenting judgments, let alone how many contained disagreements within the many concurring opinions — held so little attraction for later sittings of the court?

The answer is both yes and no. It cannot be denied that the redemption of minority opinion occurs with minimal frequency — far less often, I suspect, than is popularly believed. But this should not be so surprising. The court is, after all, an institution whose members are drawn from the pinnacle of an inherently conservative profession. It places enormous value in the consistency of legal decision-making and the incremental development of principle to respond to changes in society. An aptitude towards the regular making of a volte-face could hardly be less likely under the circumstances. While such an occurrence is not unheard of, one swallow — or even a couple — does not make a summer. As a collegiate decision-making body, the daily reality of the High Court’s ability to function is respect for majority rule.

However, it is rightly with very great reluctance that one could think of suggesting that dissent on the court is largely without value in shaping the law. Of course, as acknowledged elsewhere, the expression of minority opinion serves significant institutional purposes relating to process and democratic credentials. But it would be a mistake to assume that minority opinion makes only a rare and sporadic contribution to the law’s development. The key to appreciating this is to distinguish between the direct and indirect influence which opinions may exert. In the former sense, it appears that minority opinions had only a small success in bringing about change in the High Court’s constitutional jurisprudence over a little more than two decades. That is revealing — particularly for those determined upon a course of persistent dissent.

However, the low rate of vindicated dissents should not be allowed to inhibit an appreciation of the indirect significance that many minority opinions may have upon the views expressed by the court. Within particular contexts, the indirect effect and appeal of a minority approach is likely to be quite enigmatic. The pedigree of the court’s unanimous opinion as to the meaning of s 92’s guarantee of free interstate trade, commerce and intercourse is an excellent example of drawing upon a number of earlier opinions — both consciously and not — to produce an interpretation which is, ultimately, something altogether new.^[179] By way of a rather different example, the series of cases in this study which concern interpretation of the territories power in s 122 is an instance where, at least at this point in time, the interplay between judgments has been such that the influence exercised by any minority opinion is difficult to discern with consistency or precision. Dissenting opinions may also have importance beyond the confines of any specific question and in respect of more general principles. From the cases comprising this study, a good example of the latter is the joint dissent of Mason and Deane JJ in Re F; Ex parte F,^[180] wherein their Honours renounced the methodology they had previously employed in respect of the ‘marriage’ power in s 51(xxi)^[181] and set forth a clear clarification of the principles of characterisation.

Influence of that sort is often so elusive as to deny the possibility of uncontentious tracking. There is, though, some middle ground between, on the one hand, the vague interconnectedness shared by opinions in many areas of the law and, on the other, clear cut shifts between polar opposites. Without falling into either camp, minority opinions can still exercise a significant, and objectively discernible, effect upon the law by stimulating a better quality of majority judgment. The role which dissents played in the cases on s 80 and the implied freedom of political communication are illuminating in this respect. In both contexts, the minority played a vital role in exposing deficiencies in majority reasoning. This may lead to the latter’s collapse and supplantation by those earlier dissenting views — particularly if the area is a newly evolving one. Or it may produce a more robust and principled statement of the court’s traditional position. In either case, and regardless of more specific misgivings we might have about their respective interpretations, it is impossible to say that either of those areas examined here would be in a more satisfactory state had the court not heard the voices of dissent which have challenged and stimulated the law’s development.

Ultimately then, in order to appreciate fully the operation and significance of minority opinions, it is necessary to move beyond a search simply for instances of reversal from the court. This study shows that those are highly infrequent. Instead we need to acknowledge that dissents — even by their non-acceptance — exert some level of influence over the law which the court declares as an institution. This represents a far subtler impact upon the High Court’s interpretation of the Constitution, but it is no less valuable for that.

APPENDIX A

Table A – High Court Constitutional Cases 1981–2003

Constitutional Section/Topic	Number of Cases in which Discussed	Case References (CLR volume/page) Normal text indicates unanimous judgment Italics indicate case decided by concurring opinions Bold indicates case decided with dissent
s 7	1	186/140
s 24	2	186/140, 186/302
s 41	1	152/254
s 44	2	176/77, 199/462
s 47	1	199/462
s 48	1	169/195
s 51(i)	3	152/477, 202/133, 202/535
s 51(ii)	10	158/622, 158/678, 163/329, 176/480, 176/555, 179/155, 186/630, 187/579, 202/133, 215/185
s 51(v)	2	177/106, 184/348
s 51(vi)	4	166/518, 172/460, 172/501, 181/18
s 51(x)	1	179/270
s 51(xii)	1	187/579
s 51(xiii)	1	170/276
s 51(xviii)	3	176/480, 181/134, 202/479
s 51(xix)	6	151/101, 165/178, 176/1, 182/272, 207/391, 212/162
s 51(xx)	9	150/169, 150/282, 152/570, 158/1, 166/79, 169/482, 170/276, 183/323, 187/416
s 51(xxi)	9	149/227, 150/615, 151/491, 156/170, 156/228, 156/249, 161/376, 161/438, 181/583
s 51(xxii)	5	149/227, 150/615, 151/491, 163/278, 181/583
s 51(xxiiiA)	2	162/271, 179/226
s 51(xxvi)	3	153/168, 158/1, 195/337
s 51(xxix)	12	153/168, 158/1, 159/351, 164/261, 166/79, 167/232, 172/501, 181/183, 187/416, 187/640, 190/513, 202/535
s 51(xxxi)	18	152/477, 155/193, 158/1, 158/622, 159/636, 176/480, 177/106, 179/155, 179/226, 179/270, 179/297, 181/134, 187/416, 190/513, 191/471, 194/1, 202/133, 204/493
s 51(xxxv)	16	153/297, 153/376, 153/402, 154/1, 158/535, 159/192, 159/636, 160/430, 161/88, 171/232, 176/154, 177/1, 184/188, 187/416, 192/1, 203/346
s 51(xxxviii)	1	168/340
s 51(xxxix)	6	152/179, 158/1, 158/535, 163/329, 166/79, 177/1
s 52	4	181/548, 186/630, 190/410, 200/322
s 53	1	210/333
s 54	1	176/555
s 55	7	165/462, 173/450, 176/480, 179/226, 202/133, 210/333, 215/185
s 61/Executive Power	2	166/79, 179/155
s 64	1	207/391
s 71	8	152/179, 154/261, 166/518, 172/84, 172/460, 173/167, 200/322, 202/629
s 72	4	166/518, 172/460, 173/167, 200/322
s 73	7	167/259, 171/232, 173/194, 203/1, 206/161, 209/165, 211/1
s 74	1	159/461
s 75	14	154/207, 154/261, 159/22, 160/315, 161/254, 161/543, 163/117, 184/620, 189/253, 196/354, 197/510, 204/82, 211/287, 211/476
s 76	14	151/575, 152/25, 154/261, 160/315, 161/543, 181/404, 184/620, 191/119, 196/553, 197/510, 200/322, 200/591, 202/629, 209/372
s 77	12	150/49, 152/25, 154/261, 161/543, 172/84, 174/455, 184/620, 196/553, 197/510, 200/591, 202/629, 211/287
s 79	1	172/84
s 80	10	159/264, 160/171, 177/541, 181/18, 199/1, 199/40, 200/386, 203/248, 207/278, 209/1
s 81	2	169/195, 176/555
s 83	2	169/195, 176/555
s 90	10	151/599, 154/311, 155/368, 167/399, 167/503, 168/314, 177/248, 178/561, 178/634, 189/465
s 92	12	153/650, 157/605, 161/60, 161/556, 165/360, 165/411, 169/436, 171/182, 177/1, 177/106, 182/272, 199/160
s 106	1	186/140
s 109	36	151/302, 152/25, 152/211, 152/632, 153/280, 154/632, 158/447, 158/535, 159/70, 160/330, 161/47, 161/217, 162/317, 162/574, 166/1, 166/186, 168/289, 169/41, 169/172, 169/307, 170/218, 174/379, 175/453, 179/388, 181/583, 183/373, 184/620, 190/410, 191/119, 196/392, 197/61, 199/160, 201/213, 201/351, 202/629, 204/158
s 114	5	162/74, 174/219, 174/235, 178/145, 210/51
s 116	1	190/1
s 117	3	168/461, 179/463, 207/391
s 118	7	169/41, 169/172, 174/1, 176/433, 179/463, 181/583, 203/503
Federal Jurisdiction/Chapter III	36	154/261, 157/57, 158/596, 161/88, 163/140, 166/518, 172/84, 172/460, 172/501, 173/167, 174/455, 176/1, 181/18, 181/404, 181/583, 183/245, 183/323, 184/348, 189/1, 189/51, 190/1, 190/311, 193/173, 195/547, 197/83, 197/510, 198/511, 199/462, 204/158, 204/559, 207/584, 209/246, 209/372, 210/333, 211/119, 211/287
Freedom of Information	1	163/54
Governor-General’s powers	1	157/91
Co-operative Schemes	5	158/535, 158/596, 163/117, 168/340, 198/511
Cross-vesting of power	2	150/49, 198/511
Implied Freedom of Communication	12	161/556, 177/1, 177/106, 182/104, 182/211, 182/272, 186/302, 186/352, 189/520, 189/579, 208/199, 212/1
Implied Freedom of Movement	1	190/1
Privative Clause	1	211/476
Right of citizen to resist expulsion	1	201/226
Reciprocity of extradition laws	1	155/186
Relationship of Australian Courts to Privy Council	5	151/575, 155/72, 155/102, 155/107, 159/461
Commonwealth-State Inter-governmental Relations	9	159/192, 161/254, 161/639, 163/329, 184/188, 187/416, 190/410, 191/471, 215/185
Reception of Common Law/Sovereignty	1	175/1
State Parliament (powers of)	6	166/1, 166/186, 168/340, 189/51, 189/253, 195/424
Territories – s 122	11	161/1, 166/79, 169/172, 177/106, 177/248, 181/548, 190/1, 190/513, 196/553, 198/511, 200/322
State Constitutional Matters
– Acquisition of property	1	205/399
– Amendment	2	149/79, 207/344
– Courts	2	211/1, 211/119
– Crown immunity	1	198/334
– extra-territoriality of laws	2	160/548, 211/1
– Freedom of Information	1	160/145
– Freedom of Political Communication	1	186/352
– State boundaries	2	148/1, 149/107

^[∗] * Senior Lecturer, Faculty of Law, University of New South Wales. This article is drawn from my doctoral thesis and I thank my supervisor, Professor George Williams, and my three examiners for their earlier comments on this material. I also thank Professor Jenni Millbank and the two anonymous referees for their suggestions on this particular article. I alone am responsible for any flaws.

^[1] In this respect, the High Court merely reflects the traditions of the English legal system which favoured the delivery of judicial opinions in seriatim: John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 221 at 233–37. Despite its similar heritage, the United States Supreme Court developed a far more institutional approach to judicial decision-making: see John P Kelsh, ‘The Opinion Delivery Practices of the United States Supreme Court 1790–1945’ (1999) 77 Washington University Law Quarterly 137. That has been on the wane in recent years, causing some dissatisfaction: Lewis A Kornhauser and Lawrence G Sager, ‘Unpacking the Court’ (1986) 96 Yale Law Journal 82; Mark Alan Thurmon, ‘When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions’ (1992) 42 Duke Law Journal 419. Of course, the courts of civil law countries have traditionally not allowed the delivery of individual opinions at all.

^[2] The Chief Justice has said that ‘[t]he independence of judges includes independence of one another’: Murray Gleeson, ‘The Right to an Independent Judiciary’ (Paper presented at the 14th Commonwealth Law Conference, London, September 2005). See also Michael Kirby, ‘Dissent and the Importance of Judicial Diversity’ (Paper presented at the Institute Of Judicial Studies of New Zealand Conference Rotorua, August 2005); Sir Anthony Mason, ‘The Centenary of the High Court of Australia’ (2003) 5 Constitutional Law and Policy Review 41 at 43.

^[4] Id at 746 (n101 provides an extensive list of references). See also Michael Kirby, ‘Judicial Dissent — Common Law and Civil Law Traditions’ (Paper presented at Monash University, Melbourne, 28 September 2006).

^[5] Charles Hughes, The Supreme Court of the United States (1928) at 68. In Federation Insurance Ltd v Wasson [1987] HCA 34; (1987) 163 CLR 303 at 314, Mason CJ, Wilson, Dawson & Toohey JJ said that ‘[a] dissenting judge will often see his or her judgment as an appeal to the brooding spirit of the law, waiting for judges in future cases to discover its wisdom.’

^[6] For a general discussion of the psychology of group decision-making, see Cass R Sunstein, Why Societies Need Dissent (2003); and, in comment upon that work’s relevance to judicial attitudes, see Andrew 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.

^[9] Robert Bennett, ‘A Dissent on Dissent’ (1991) 74 Judicature 255 at 260; Keith Mason, ‘The Rule of Law’ in Paul D Finn (ed), Essays on Law and Government Volume 1 — Principles and Values (1995) at 137.

^[10] See especially 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 255; Andrew Lynch, ‘Does the High Court Disagree More Often in Constitutional Cases? A Statistical Study of Judgment Delivery 1981–2003’ (2005) 33 Federal Law Review 485; Russell Smyth, ‘Historical Consensual Norms in the High Court’ (2002) 37 Australian Journal of Political Science 255.

^[11] Russell Smyth, ‘Explaining Historical Dissent rates in the High Court of Australia’ (2003) 41 Commonwealth & Comparative Politics 83; Russell Smyth, ‘What Explains Variations in Dissent Rates? Time Series Evidence from the High Court’ [2004] SydLawRw 10; (2004) 26 Sydney Law Review 221.

^[12] An exception is Michael Coper & George Williams (eds), Justice Lionel Murphy: Influential or Merely Prescient? (1997).

^[13] Contrast the major American study plotting the fate of dissenting opinions issued in the United States Supreme Court to assess their future relevance, found in Harold J Spaeth & Jeffrey A Segal, Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (1999).

^[14] The insertion of s 51(xxiiiA) into the Commonwealth Constitution by the 1946 referendum result might be seen as a powerful response to the High Court declaring the Pharmaceutical Benefits Act 1944 (Cth) invalid in Attorney-General (Vic) v Commonwealth [1945] HCA 30; (1945) 71 CLR 237 (‘Pharmaceutical Benefits Case’). However, it can hardly be said that the new head of power drew upon the opinions delivered in that case (let alone just those in dissent), which were primarily concerned with the limits inherent in s 81’s power of appropriation.

^[17] Lynch, above n10. That study employed a methodology only slightly modified from that set down in Andrew Lynch, ‘Dissent: Towards a Methodology for Measuring Judicial Disagreement in the High Court of Australia’ (2002) 24 Sydney Law Review 470.

^[18] A good example of the latter is s 51(xxi), which was frequently considered in cases across the early 1980s but has not been revisited since.

^[23] See Part V of this article. This is not to suggest that the influence of other earlier minority judgments is nugatory — far from it, as I shall discuss further in the later parts of this paper. Additionally, I should point out that where decisions made after 2003 have some bearing on matters, I have referred the reader to them.

^[24] A similar approach was adopted by both Alan Barth, Prophets with Honor: Great Dissents and Great Dissenters in the Supreme Court (1974) and Donald Lively, Foreshadows of the Law: Supreme Court Dissents and Constitutional Development (1992), who were willing to consider concurrences in the United States Supreme Court in a similar context. That was pointedly rejected by this author as unacceptable flexibility in an empirical study of disagreement: Lynch (2002), above n17 at 487–91. In having resort to minority concurring opinions for present purposes, that earlier view is not being recanted; nor is it being suggested (as was the case in some Canadian and United States studies) that dissent and concurrence are logically part of some broader class of ‘separate opinion’. The division between the two types of opinion remains an essential one to observe in respect of a court which issues judgments in seriatim. For that reason, when minority concurrences are discussed here, their character as such is explicitly stated so as to avoid confusion.

^[31] The power to make laws with respect to ‘marriage’ and ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’.

^[33] The requirement that trial on indictment for a Commonwealth offence shall be by jury.

^[34] The power to levy customs and excise and grant bounties on the production or export of goods duties shall be exclusive to the Commonwealth.

^[36] The power of the Commonwealth to make laws for the government of a territory.

^[37] Although the category of cases with respect to judicial power ties with this, it also having 36 cases.

^[39] O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 267 (Brennan J).

^[40] See Lynch, above n3 at 752–56, for examples and principles relevant to this discussion.

^[41] Spaeth and Segal argue that this can be the only accurate guide to the power of precedential constraint, for ‘when prior preferences and precedents are the same it is not meaningful to speak of decisions as being determined by precedent’: Spaeth & Segal, above n13 at 3.

^[42] Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1993) 179 CLR 297 at 325 (McHugh J) (‘Georgiadis’). His Honour expressly surrendered to the majority’s holding in Georgiadis when the issue was revisited in Commonwealth v Mewett (1997) 191 CLR 471 at 532 (McHugh J) (‘Mewett’). In Smith v ANL Ltd (2000) 204 CLR 493, Hayne J sought to distinguish both Georgiadis and Mewett on the basis that while the Commonwealth legislation before them sought to remove a common law right to sue for damages, it did so prospectively, rather than through instantaneous action which could be characterised as an ‘acquisition’. Justice McHugh’s concurrence with this dissent should not be seen as some attempt to attack Georgiadis via the backdoor. The legislation’s use of a six-month time frame for extinguishing the right to sue was a clear difference between the two cases, and no doubt was expressed as to the propositions for which Georgiadis itself stands.

^[44] Robert H Jackson, ‘The Supreme Court as a Unit of Government’ in Alan F Westin (ed), The Supreme Court: Views from Inside (1961) at 28.

^[46] Chief Justice Gibbs was the third member of the minority. All three justices dissented yet again in relation to the scope of the power, but on somewhat more complicated facts, in Kirmani v Captain Cook Cruises Pty. Ltd. (No. 1) (1985) 159 CLR 351. See also, Daryl Dawson, ‘The Constitution — Major Overhaul or Simple Tune-up?’ [1984] MelbULawRw 1; (1984) 14 Melbourne University Law Review 353.

^[50] Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia [1913] HCA 41; (1913) 17 CLR 261 at 278–9 (Isaacs J).

^[54] Victoria v The Commonwealth (Industrial Relations Act Case) (1995) 187 CLR 416 at 566–73 (Dawson J).

^[56] Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 (‘Evda Nominees’) at 316 (Gibbs CJ, Mason, Murphy, Wilson, Brennan & Dawson JJ).

^[61] Indeed, its clear effect in this respect was illustrated above by its influence upon Dawson J in compelling him to accept the authority of the Tasmanian Dams decision in Richardson v Forestry Commission as the parties had not sought to question the earlier authority: Richardson (1988) 164 CLR 261 at 322 (Dawson J).

^[65] O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 267 (Brennan J).

^[69] As with the court’s acceptance in Commonwealth v Cigamatic Pty Ltd (in liq) [1962] HCA 40; (1962) 108 CLR 372 of Dixon J’s lone dissent in Re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation [1947] HCA 45; (1947) 74 CLR 508, which his Honour had not, despite it having been raised, referred to in judgment in intervening cases.

^[70] Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 182–3 (Gibbs CJ); Tasmanian Dams Case [1983] HCA 21; (1983) 158 CLR 1 at 118–9 (Gibbs CJ), 202 (Wilson J) and 316 (Dawson J); Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 (‘Re Dingjan’) at 346 (Dawson J). Of course, since the period under study here, this view has been decisively rejected by a majority in New South Wales v Commonwealth [2006] HCA 52; (2006) 81 ALJR 34 at 81 (Gleeson CJ, Gummow, Hayne, Heydon & Crennan JJ).

^[71] Hematite Petroleum Pty Ltd v Victoria [1983] HCA 23; (1983) 151 CLR 599 at 623 (Gibbs CJ) and 643–51 (Wilson J); Gosford Meats Pty Ltd v New South Wales [1985] HCA 5; (1985) 155 CLR 368 at 380 (Gibbs CJ); 400–2 (Wilson J) and 416–7 (Dawson J); Philip Morris Ltd v Commissioner of Business Franchises (Vic) [1989] HCA 38; (1989) 167 CLR 399 at 472–75 (Dawson J): essentially all arguing for the maintenance of the ‘criterion of liability’ test favoured unanimously in Bolton v Madsen [1963] HCA 16; (1963) 110 CLR 264. After this line failed, a strong minority of opinion urged a return to the narrow definition of excise from Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497: Philip Morris Ltd v Commissioner of Business Franchises (Vic) [1989] HCA 38; (1989) 167 CLR 399 at 478–80 (Toohey & Gaudron JJ); Capital Duplicators Pty Ltd v Australian Capital Territory [No. 2] [1993] HCA 67; (1993) 178 CLR 561 at 616–7 (Dawson J) and 627–32 (Toohey & Gaudron JJ); Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 512 (Dawson, Toohey & Gaudron JJ).

^[73] Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 at 585 (Deane J) and 603 (Gaudron J); Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 at 489–90 (Deane J) and 498–9 (Gaudron J); Re Tyler [1994] HCA 25; (1994) 181 CLR 18 at 34 (Deane J) and 35 (Gaudron J). Since 2003, the court has had opportunity to revisit this issue in Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308, with only Kirby J indicating the barest of support for the view of Deane J, saying that ‘one day’ it would be adopted: Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308 at 337. The matter may well receive more attention in White v Director of Military Prosecutions & Anor (S312/2006), heard by the court in February 2007.

^[77] There was no clear majority in favour of simply an expansive view of s 51(xx) since Brennan J’s decision upheld the restraints imposed upon the Hydro-Electric Commission by the World Heritage Properties Conservation Act 1983 (Cth) on the narrower ground provided by the legislation which did not require adoption of a wider understanding of s 51(xx).

^[78] The justices comprising the majority in Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, Re Nolan; Ex parte Young [1991] HCA 29; (1991) 172 CLR 460 and Re Tyler [1994] HCA 25; (1994) 181 CLR 18 could not agree upon whether the jurisdiction of military tribunals established under s 51(vi) was enlivened simply through ‘service status’ (that is, so long as the offence was committed by defence force personnel, jurisdiction to hear it could be validly conferred upon the tribunal) or ‘service connection’ (jurisdiction extended to hearing of any offence if it could reasonably be said that the maintenance and enforcement of service discipline would be served by such a hearing).

^[82] On the ‘one-sided’ nature of respect for precedent from the liberal wing of the United States Supreme Court, see Earl Maltz, ‘Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v Casey’ (1992) 68 Notre Dame Law Review 11 at 30–31; Charles Cooper, ‘Stare Decisis: Precedent and Principle in Constitutional Adjudication’ (1988) 73 Cornell Law Review 401 at 401–2.

^[89] Chief Justice Dixon declined to avail himself of the opportunity to persist in the views he had expressed in Lowenstein when he applied that decision in Sachter v Attorney-General (Cth) [1954] HCA 43; (1954) 94 CLR 86 at 88 (Dixon CJ).

^[94] It should be acknowledged that the court has been united in restricting legislative attempts to define the concept of a ‘jury’ (see especially Cheatle v Regina [1993] HCA 44; (1993) 177 CLR 541; Katsuno v Regina [1999] HCA 50; (1999) 199 CLR 40; Brownlee v Regina [2001] HCA 36; (2001) 207 CLR 278 (‘Brownlee’)). Behind that broad consensus, however, exists the very clear division of opinion amongst justices as to how the court is to determine the meaning of that word, which is really just part of a much larger debate over methodology: Brownlee is probably the most significant example of this, but see also McHugh J’s judgment in Cheng v Regina [2000] HCA 53; (2000) 203 CLR 248 as a response to that of Kirby J in Re Colina (1999) 200 CLR 386.

^[100] Id at 318–9 (Deane J). In Cheng v Regina, the majority made much of the disagreement between the dissenters as to the meaning of ‘trial on indictment’: Cheng v Regina [2000] HCA 53; (2000) 203 CLR 248 at 269 (Gleeson CJ, Gummow & Hayne JJ) and 295 (McHugh J). See also Re Colina (1999) 200 CLR 386 at 421 (Kirby J).

^[108] However, Kirby J’s alignment with the dissent of Deane J creates a different and deeper inconsistency. Meagher points out the incongruity of espousing a Constitution no longer a ‘hostage’ to the intentions of its draftsmen (Re Colina (1999) 200 CLR 386 at 422–3) while purporting to embrace the opinion of Deane J in Kingswell which draws on those very same intentions in order to support a reading of the words ‘trial on indictment’ as requiring trial by jury for all ‘serious’ offences: Dan Meagher, ‘New Day Rising? Non-Originalism, Justice Kirby and Section 80 of the Constitution’ (2002) 24 Sydney Law Review 141 at 167.

^[116] The objection to these facts as an agent for substantial re-interpretation of s 80 hinged particularly on the defendants having made guilty pleas so that there was ‘nothing for a jury to try’: Cheng [2000] HCA 53; (2000) 203 CLR 248 at 268 (Gleeson CJ, Gummow & Hayne JJ). See Simpson and Wood’s criticism of this stance, above n85 at 104–5.

^[122] On Kirby J’s willingness to ‘smuggle’ the word ‘serious’ into s 80, see Meagher’s assessment that his Honour fails to meet his own standards of appropriate non-originalist interpretation, above n108 at 167.

^[127] In doing so, McHugh J’s judgment in Cheng overcomes the criticism attracted by the majority’s refusal to be drawn on the issue in Re Colina which had led at least one commentator to suggest that future justices would follow in the wake of Kirby J’s dissent in the latter case: id at 224, 228.

^[131] However, it should be noted that the Chief Justice has suggested that ‘[t]he limits of Parliament’s capacity to provide for summary trial of even the most serious offences are yet to be decided’: Murray Gleeson, ‘The Federal Judiciary in Australia’ (Paper presented at the Federal Magistrates’ Conference, Melbourne, 20 October 2005).

^[139] Id at 484–86 (Mason CJ); 517–18 (Brennan J); 532 (Deane J); 549 (Dawson J); 568 (Gaudron J) and 587 (McHugh J).

^[148] Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 408–9 (Gaudron J); 421 (McHugh J); 490–1 (Kirby J) and 518 (Callinan J) (‘Patterson’).

^[149] Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162.

^[150] Id at 170 (Gleeson CJ); 186 (McHugh J); 200 (Gummow J) and 220 (Hayne J).

^[152] Id at 44 (Gleeson CJ, Gummow and Hayne JJ; Heydon J concurring). Justice Heydon has, when discussing changing the common law, pointed out that ‘the overruling of an earlier decision resting on a particular principle may generate chaos if the court which effects the overruling is unable to assemble a majority in support of a replacement principle’: Dyson Heydon, ‘Limits to the Powers of Ultimate Appellate Courts’ (2006) 122 Law Quarterly Review 399 at 420.

^[166] Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘ACTV’).

^[169] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 280 (Kirby J) and 331 (Callinan J)

^[171] McGinty [1996] HCA 48; (1996) 186 CLR 140 at 169 (Brennan CJ). Compare his Honour’s earlier statement in Theophanous that the ‘implication is derived from the structure of representative government prescribed by the Constitution rather than inhering in a particular word or phrase of its text’: Theophanous [1994] HCA 46; (1994) 182 CLR 104 at 149 (Brennan CJ).

^[172] Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556 at 582 (Murphy J). See also Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 88 (Murphy J). While Kirby J has sought to acknowledge the debt owed to Murphy J in this regard (Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257 at 270 (Kirby J); Michael Kirby, ‘The Power of Lionel Murphy’s Ideas’ in Charles Sampford & Sophie Blencowe (eds), Through the World’s Eye (2000) at 127–144), the rest of the court has been less willing to do so. See also George Williams, ‘Lionel Murphy and Democracy and Rights’ in Coper & Williams, above n12 at 62–3.

^[175] Miller v TCN Channel Nine Pty Ltd [1986] HCA 60; (1986) 161 CLR 556 at 569 (Gibbs CJ); 592 (Wilson J); 615 (Brennan J); 625 (Deane J) and 636–7 (Dawson J). Justice Mason, at 579, contented himself with saying simply that he could find no ‘basis for implying a new s 92A into the Constitution.’

^[176] See Lindell’s assessment of this case and the persuasiveness of Dawson J’s solo dissent: Lindell, above n160 at 126–7.

^[179] Coper’s description of the link between Gavan Duffy’s views on s 92 and the Cole v Whitfield test is particularly evocative of this phenomenon: Coper, above n125.

Sydney Law Review

Lynch, Andrew --- "The Intelligence of a Future Day': the Vindication of Constitutional Dissent in the High Court Australia -1981-2003" [2007] SydLawRw 8; (2007) 29(2) Sydney Law Review 195

‘The Intelligence of a Future Day’: The Vindication of Constitutional Dissent in the High Court Australia – 1981-2003

1. Introduction

2. Methodology

3. Constitutional Consensus and Disagreement — General Observations

A. The Presence and Nature of Disagreement

B. The Pull Towards Conformity

C. Foreclosing Opportunities for Minority Opinions

4. The Diehards — Persistent Dissent

A. Persistence — a Tool of Dynamism and Conservatism

B. A Case Study on Persistence — The Right to Trial by Jury

C. Persistence — Valuable Nonetheless?

5. The Redemption of Minority Opinions

A. Section 117’s Guarantee of Non-Discrimination

B. Section 51(xix) – Parliament’s Power to Declare an ‘Alien’

C. The Implied Freedom of Political Communication

6. Conclusion — The Impact of Minority Opinions

APPENDIX A

Table A – High Court Constitutional Cases 1981–2003