Home Economics Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges
The High Court of Australia consists of seven justices. Although technically the governor general in council (cabinet) appoints the justices, in practice the
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. According to Narayan and Smyth, the actual appointment process is not clear. There is no senate hearing, no legislative review, and no legislative requirement that the government engage in consultation with the judiciary or the profession. The prime minister works
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. 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. 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”].
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. 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), but personal and ideological beliefs do play some role in decisionmaking. 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. 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.
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