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Home arrow Economics arrow Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges


The High Court of Australia consists of seven justices.[1] Although technically the governor general in council (cabinet) appoints the justices, in practice the

Fraction of dissenting opinions per year

Figure 1-4 Fraction of dissenting opinions per year (number of dissenting opinions in the year divided by the total number of decisions in the year) over the period from 1970 to the early 2000s. The box shows the middle 50 percent of the data for each country, and the line in the box shows the median value of the fraction of dissenting opinions over the period. The lines above and below each box provide the maximum and minimum fraction of dissenting opinions for each country in the period. As with Figure 1-2, the united States had by far the highest rate of dissenting opinions over the period and India by far the lowest. Australia and Canada had similar levels of fraction of dissenting opinions with the uK slightly less. source: HCJD and Spaeth database.

cabinet appoints justices on the recommendation of the attorney general in consultation with state attorneys generals.[2] According to Narayan and Smyth, the actual appointment process is not clear.[3] There is no senate hearing, no legislative review, and no legislative requirement that the government engage in consultation with the judiciary or the profession.[4] The prime minister works

Relative commitment and cooperation of various high courts

Figure 1-5 Relative commitment and cooperation of various high courts. High courts of different countries may be provisionally arrayed on the quadrants from Figure 1-1 based on the existing literature and initial data relating to both how political and how cooperative are the judges on the courts. The uS Supreme Court appears to be an outlier in terms of both its politicization and level of disagreement. However, there is also some differentiation amongst the other high courts.

with the attorney general in the appointment of the chief justice.[5] unlike the united States, then, the executive holds the primary power of appointment.

The High Court is the final court of appeal for the federal courts and state and territorial supreme courts, but also is the first court to hear certain matters including constitutional issues.[6] Almost all appeals require leave to appeal from the Court.30 To get heard, an appeal must involve either a sufficiently important legal principle or a significant irregularity in how the matter was dealt with by the lower court.31 When leave is refused, a single justice speaks for the court, but may confer briefly with colleagues.32 unlike some of the other countries studied, Australia does not have a Bill of Rights or equivalent set of constitutional rights. However, the High Court does hear a significant number of appeals relating to federalism issues.33

Most appeals are heard by panels of five, with sessions en banc (or “full court” as they are known in Australia) held for constitutional and unusually complex cases.34 The chief justice chooses the panel that hears the appeal. According to Pierce, the chief justice, with the deputy registrar, chooses the justices “basing assignments on the type of case and the judges” workload, planned leaves, and other official responsibilities.35 The justices tend to write seriatim decisions— that is, their own opinions—although at times there is a single unanimous decision or justices joining in on others’ judgments.36

Committee of the Privy Council before that time. See Paresh Kumar Narayan & Russell Smyth, “What Explains Dissent on the High Court of Australia? An Empirical Assessment Using a Cointegration and Error Correction Approach” (2007) 4:2 Journal of Empirical Legal Studies 401 at 404 [Narayan & Smyth, “What Explains Dissent”].

  • 30. The Court obtained docket control through the leave-to-appeal process in 1984, prior to which there was a right to appeal from many courts and tribunals. See Russell Smyth, “The ‘Haves’ and the ‘Have Nots’: An Empirical Study of the Rational Actor and Party Capability Hypothesis in the High Court 1948-99” (2000) 35:2 Australian Journal of Political Science 255 at 270 [Smyth, “The ‘Haves’ and the ‘Have Nots’ ”]. There are certain exceptions for some family law matters. See Matthew Groves & Russell Smyth, “A Century of Judicial Style: Changing Patterns in Judgment Writing on the High Court 1903-2001” (2004) 32 Federal Law Review 255 at 259 [Groves & Smyth].
  • 31. Narayan & Smyth, “What Explains Dissent,” supra note 29 at 405.
  • 32. Groves & Smyth, supra note 30 at 260. Generally the judge provides only limited reasons.
  • 33. Bhattacharya & Smyth, supra note 25 at 232-233; Smyth, “The ‘Haves’ and the ‘Have Nots,’ ” supra note 30 at 268-269.
  • 34. Russell Smyth, “‘Some Are More Equal than Others’—An Empirical Investigation into the Voting Behaviour of the Mason Court” (1999) 6:1-2 Canberra Law Review 193 at 200 [Smyth, “Some Are More Equal”]; Pierce, supra note 27 at 323.
  • 35. Pierce, supra note 27 at 323. See also Russell Smyth, “Judicial Interaction on the Latham Court: A Quantitative Study of Voting Patterns on the High Court 1935-1950” (2001) 47:3 Australian Journal of Politics and History 330 at 336 (stating that in 1935-1950 the Court sat in panels of three or four judges for over 50 percent of the cases, and never sat on panels of seven judges).
  • 36. Russell Smyth & Paresh Kumar Narayan, “Hail to the Chief! Leadership and Structural Change in the Level of Consensus on the High Court of Australia” (2004) 1:2 Journal of Empirical Legal Studies 399 at 404 [Smyth & Narayan, “Hail to the Chief”].

The reputation of the Australian High Court suggests that it is a positivist court. The High Court is not considered to be highly politicized, particularly relative to the uS Supreme Court.[7] It is seen as having a strong tradition of legalism (Sir Owen Dixon, who was chief justice of the High Court from 1952 to 1964, famously espoused “strict and complete legalism” in judicial decisionmaking[8]), but personal and ideological beliefs do play some role in decisionmaking.[9] The spread of judges in terms of their lifetime liberal voting rates seen in Figure 1-2 is at the low end, signaling at least that the High Court has not been as polarized as, for example, the uS Supreme Court. In terms of cooperation, the tradition of seriatim judgment writing means that the decision-making of the court tends toward individualized judgments.[10] Perhaps relatedly, returning to Figures 1-3 and 1-4 we see that Australia had the second highest rate both of judgments with at least one dissent and of fraction of dissenting opinions in the past, though in terms of the fraction of dissenting opinions it was closer on this measure to Canada and the uK than to the uS Supreme Court.

  • [1] Commonwealth of Australia Constitution Act 1900 (Cth), s 72 [Australia Constitution]. Thebench has consisted of seven justices since 1946. See Paresh Kumar Narayan & Russell Smyth,“The Consensual Norm on the High Court of Australia: 1904-2001” (2005) 26:2 InternationalPolitical Science Review) 147 at 151 [Narayan & Smyth, “Consensual Norm”].
  • [2] Mita Bhattacharya & Russell Smyth, “The Determinants of Judicial Prestige andInfluence: Some empirical evidence from the High Court of Australia” (2001) 30:1 Journal ofLegal Studies 223-252 at 229 [Bhattacharya & Smyth].
  • [3] Narayan & Smyth, “Consensual Norm,” supra note 24 at 151. See also Bhattacharya & Smyth,supra note 25 at 229-330.
  • [4] Narayan & Smyth, “Consensual Norm,” supra note 26 at 151; Jason Pierce, “InstitutionalCohesion in the High Court of Australia: Do American Theories Travel Well Down Under?”(2008) 46:3 Commonwealth & Comparative Politics 318 at 320 [Pierce].
  • [5] George Winterton, “Appointment of Federal Judges in Australia” (1987) 16 MelbourneUniversity Law Review 185 at 186-187.
  • [6] Australia Constitution, supra note 24, s 75 gives original jurisdiction to the High Court ina number of listed matters such as matters arising under treaty whereas Australia Constitution,supra note 24, s 76 empowers the parliament to pass legislation conferring original jurisdiction on the High Court in other matters including those arising under the Constitution. TheJudiciaryAct 1903 (Cth) [JudiciaryAct] gives original jurisdiction over constitutional matters tothe High Court. See also Bhattacharya & Smyth, supra note 25 at 229. The High Court becamethe final court of appeal in 1986 with some appeals from the High Court going to the Judicial
  • [7] Bhattacharya & Smyth, supra note 25 at 229.
  • [8] Bhattacharya & Smyth, supra note 25 at 231
  • [9] Bhattacharya & Smyth, supra note 25 at 232. See also Michael Coper, “Concern aboutJudicial Method” (2006) 30 Melbourne University Law Review 554.
  • [10] Narayan & Smyth, “What Explains Dissent,” supra note 29 at 405.
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