Lynch, Andrew; Williams, George --- "The High Court on Constitutional Law: The 2012 Statistics" [2013] UNSWLRS 65

Last Updated: 27 September 2013

The High Court on Constitutional Law: The 2012 Statistics

Andrew Lynch, University of New South Wales
George Williams, University of New South Wales


This paper is available for download at Available at http://ssrn.com/abstract=2331794

Citation

This paper was published in (2013) UNSW Law Journal, Vol 36, Issue 2, pp514-533. This paper may also be referenced as [2013] UNSWLRS 65.

Abstract

This article presents statistical information about the High Court’s decision-making for 2012 at both an institutional and individual level, with an emphasis on constitutional cases as a subset of the total. The results have been compiled using the same methodology employed in earlier years.

In previous articles in this ongoing series, we have routinely commenced with an acknowledgement of the limitations that inevitably inhere in an empirical study of the decision-making of the High Court over just one year, advising that care must be taken not to invest too much significance in the percentage calculations given the modesty of the sample size. This is most evident in respect of the subset of constitutional cases. However, we have also maintained, despite that qualification, that an annual examination of the way in which the Court decides the cases it hears is nevertheless illuminating – both about the cases themselves and the degree of consensus or diversity of approach amongst its individual members in their resolution. On that last point, we have always been careful to emphasise that we do not presume to attribute greater ‘influence’ to particular individuals within the Court’s majority in any specific case or the cases as a collection. We reiterate all those sentiments for this article and essentially regard them as read for this and subsequent statistical studies.

The year of 2012 was the final on the Court for Gummow and Heydon JJ. As these studies have shown, particularly in recent years, these judges have made very different contributions to the Court. Justice Gummow served for 17 years and throughout his tenure was a consistent member of the majority under Brennan CJ, Gleeson CJ and French CJ. Justice Heydon joined the Court in 2003 and for a time was regularly to be found in the Court’s majority bloc. However, as we have seen, he gradually moved to the position of being the Court’s frequent outlier, something that was especially noticeable after the departure of Kirby J in early 2009.

The results presented in this article hold particular interest in respect of both of these departing members. Has their final year on the Court mirrored the familiar pattern of earlier years for each or did the 2012 cases present them with opportunities and challenges that upset these expectations? At the same time, what of the rest of the Court? As the era of the Gummow-Hayne joint judgment closes, is there a comparably striking partnership in the ascendant? Or are the present judges less likely to express their reasons with any particular colleague over others? Has the remarkable surge of unanimity in the first years of Chief Justice French’s leadership recovered from its slump in 2011 or is low unanimity the new norm? The answers to these and other questions lie in the information we present in the tables below.