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Dissenting judgments

The Oxford Companion to the High Court of Australia

Andrew Lynch

Dissenting judgments. 

A dissenting judgment is one delivered by a Justice who disagrees with the majority as to the final order resolving the litigants' dispute. There is a tendency, however, to describe parts of judgments that differ from the majority view as ‘dissenting’ on particular issues, even when there is no disagreement as to the outcome of the case. Such a judgment is more accurately classified as concurring. A truly dissenting judgment is opposed to the result reached by the majority of the Court.

A Justice who disagrees with his or her colleagues generally writes a separate judgment to justify the contrary conclusion. In doing so, the Justice may helpfully refer to the reasoning of the majority and explain why that view is not shared. The primary function of a dissenting judgment is for a member of the Court to make it clear why he or she disagrees with the outcome reached by the majority and to put forward a contrary solution. Unfortunately, however, dissenting Justices often prefer to explain simply why they think the conclusion they have reached is correct rather than why that of their colleagues is wrong. Commentators despair when the Justices fail to engage in this way and question whether the Court's conferencing practice over the years has been adequate (see Collective responsibility).

From the viewpoint of the immediate parties to the action, especially since the abolition of appeals to the Privy Council, dissenting judgments of the High Court are valueless—cold comfort for the vanquished at best. However, to those outside the immediate dispute the dissent may hold more interest. Critics may champion the dissent as the view that should have prevailed in a controversial case. Whether the dissent is simply used as part of a broader attack upon the Court through the media or is used more specifically and constructively as a basis for a legislative response to the majority's decision depends upon a number of factors, not least of which are the nature of the issue and the source of the criticism.

In the longer term, dissent provides rich material for academic analysis of the Court's decisions. Debate about the correctness of the various stances adopted may ensure that the issues remain alive well after the decision is handed down. The Court may have cause to return to these issues in a later case, and the commentary made on earlier decisions may help its members to a consensus. Two significant constitutional cases of recent years illustrating the combined effect of dissenting opinions and academic criticism are Cole v Whitfield (1988), which finally resolved the Court's meaning of section 92 of the Constitution after decades of uncertainty (see Interstate trade and commerce) and Lange v ABC (1997), which confirmed the existence of an implied freedom of political communication after a much briefer, yet perhaps even more controversial, period of debate. The process can occasionally work in reverse, with commentary causing dissension where there was none before, as is demonstrated by McHugh's dissent in Masciantonio v The Queen (1995) from the reasoning of a unanimous judgment in which he had participated in Stingel v The Queen (1990). In the subsequent case, he attributes his defection substantially to his reading academic criticism of the Stingel judgment.

Justices who dissent often write with a view to convincing their colleagues to abandon their own opinions and adopt those of the dissenter. The stronger the conviction of the Justice that he or she is right, the more likely it is that the Justice will persist in dissent over a series of cases rather than defer to the majority as a matter of precedent. Perhaps the most significant function of dissent is that it may be persuasive in the formulation of future judgments of the Court. As Chief Justice Charles Evans Hughes of the United States Supreme Court once observed:

A dissent … is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.

This sentiment was echoed by Mason, Wilson, Dawson and Toohey in Federation Insurance v Wasson (1987).

The close participation of Griffith, Barton, and O'Connor as framers of the Constitution resulted in a relatively harmonious beginning to the Court's proceedings when they formed its original Bench. From 1903 to 1906, there were only four dissents (all by O'Connor, and none in a constitutional case). However, the addition of Isaacs and Higgins in 1906 resulted in dissenting judgments becoming a regular occurrence—especially in matters of constitutional interpretation. Although both newcomers had also been prominent in the Convention Debates, neither had been on the Drafting Committee. That they were less enamoured of the final form of the Constitution than their colleagues (indeed, Higgins had advocated a ‘No’ vote on the finished Bill) was to prove a significant factor in establishing a tradition of dissent. Their repeated dissents from decisions applying the doctrines of intergovernmental immunities and reserved state powers were eventually vindicated in the Engineers Case (1920).

Isaacs was the Court's first great dissenter, but there has been no shortage of dissenters on the Court since then. The rate of dissent in the Knox Court was high. Of the 561 collegiate decisions reported during the period, divisions of opinion occurred in 209 cases, or 37 per cent of the total. In 1926 and 1927, the proportion was 50 per cent, and the following year it rose to 57 per cent. In the 1930s, Starke's hostile attitude towards some of his colleagues may well have contributed to a particularly high rate of dissent. But there was competition—the Latham Court was notable for acrimonious personal relations, with Evatt, McTiernan and Latham himself all being frequent dissenters as well. Of the 789 collegiate decisions reported, divisions of opinion occurred in 42 per cent of these, reaching 72 per cent in 1944, dropping back to 39 per cent in 1945, but rising again to 65 per cent in 1946.

The only member of this Court still sitting when his colleague Dixon assumed the office of Chief Justice in 1952 was McTiernan, who was to be a continual dissenter throughout his 46 years on the Court. But with that exception, the Dixon Court was probably the most harmonious the Court has known, with disagreements in only 27 per cent of the collegiate decisions reported. With some notable exceptions, particularly in relation to early cases concerning freedom of interstate trade, Dixon himself was seldom in dissent and the Justices who served on his Court and into the early Barwick Court all had low incidences of dissent.

The tide turned in the 1970s, and McTiernan ended his tenure in a Court just as fractured as that in which he first sat. Murphy's propensity to dissent is legendary, although, even so, his rate of dissent was only about one case in six—a reminder that dissent must be seen in context and that, despite the impression given by spectacular examples to the contrary, any particular Justice is much more often in agreement with his or her colleagues than in disagreement. Of course, the proportion of dissents for any individual Justice will be much lower than the overall proportion of non‐unanimous decisions to unanimous ones.

Murphy was not the only notable dissenter. Although Barwick had dominated the Court in the latter half of the 1960s, he dissented with increasing frequency throughout the 1970s as he rapidly lost influence over the newer Justices. Murphy's reputation as a dissenter is well deserved, but Barwick, Aickin and Jacobs were all high dissenters in their own right. Generally, quieter times seemed to prevail in the Gibbs Court, despite the number of high‐profile constitutional cases that split the Court during these years.

At first glance, the Mason Court seemed to mark a return to the levels of consensus achieved under Dixon's leadership in the 1950s, but the true picture was slightly more complex. Mason himself was a rare dissenter—almost from his arrival in 1972 he was regularly the voice of the majority. Unlike Barwick, this was something he was able to sustain throughout his time on the Bench and until his retirement in 1995. The number of unanimous judgments led by Mason as Chief Justice is striking when compared with the extent of unanimity under his two predecessors, yet there was still room for individual voices during these years. Deane and McHugh were notable dissenters in this period, but the other Justices also had healthy rates of dissent. The present Court has Justices at each end of the spectrum. Gummow has dissented only a handful of times since his appointment in 1995, while Kirby is a much more frequent dissenter.

The fluctuation in dissenting judgments across the Court's history is due to a myriad of factors, including the role played by the Chief Justice. What is clear is that dissent is a relational concept. The propensity to dissent is not (or is probably not) an inherent characteristic of a Justice—he or she finds that role by virtue of the characteristics of the other Justices and the dynamics of the Court as a whole, in addition to his or her individual qualities.

It is not surprising that most dissenting judgments do not have long‐term impact. While the Court is not strictly bound by precedent, adherence to past decisions, even if only majority decisions, promotes certainty and stability; thus majority opinions inescapably command more respect. Nevertheless, some dissenting judgments have later assumed a much greater importance. The rejection by Isaacs and Higgins of the Court's early constitutional implications and the eventual acceptance of that view in the Engineers Case is a striking example. The subsequent vindication of many of Murphy's dissents may be another, although whether there is a causal connection between those dissents and the subsequent shifts in the law is hotly debated.

Conversely, it is not uncommon for Justices to defuse any potential impact of their minority view by concurring in the final result nonetheless. Such a judgment is deprived of its status as a dissent. The justification given for this approach is to avoid divisive uncertainty over an important issue. The deference by Dawson to the majority view after his own view of the external affairs power was defeated in the Tasmanian Dam Case (1983) is instructive and is to be contrasted with the continuing dissent of other Justices on comparable issues. One of the most poignant examples of abandonment of dissent is Dixon's judgment in Hughes & Vale v NSW (No 1) (1953). With the Court poised 3:3, he cast his lot, on the basis of precedent, for the view with which he personally disagreed—only to be overturned by the Privy Council, which preferred his reasoning and restored his original view.

The likelihood of persistence or capitulation depends upon various factors, including the size of the majority, the passion with which the dissenting view is held, and the perceived importance of the issue and likelihood of its recurrence. In Peters v The Queen (1998), Kirby put aside his own opinions on conspiracy to defraud so that a majority view could be reached, yet it is clear that in regard to other matters he would maintain a stoic dissent at all costs. Conversely, a Justice may persist in his or her view, but agree with another view in the alternative so as to form a majority (see, for example, Murphy in Uebergang v Australian Wheat Board (1980).

Finally, what of the impact of dissent upon the dissenters themselves? Many of the judgments betray no hint of their author's reaction to the rejection of his or her views beyond bland acknowledgment of the fact. As Stephen said upon retirement, ‘it's not a matter of great zeal and enthusiasm that my view should prevail … If it doesn't happen to be the majority view, so be it’. However, there are some memorable judgments whose status as dissenting must have been deeply disappointing to their author. Evatt's moving quotation of poetry and fiction to convey the anguish of a parent whose child is lost indicates a depth of feeling absent from the majority in Chester v Waverley Corporation (1939), which dismissed a claim for nervous shock from a mother who witnessed the recovery of her drowned son from a drain. A more direct, yet no less poignant, sentiment of regret is found at the end of Barton's dissenting judgment in Duncan v Queensland (1916): ‘To say that one regrets to differ from one's learned brethren is a formula that often begins a judgment. I end mine by expressing heavy sorrow that their decision is as it is.’ In Re Wakim (1999) (see Cross‐vesting), Kirby cited Barton and concluded his opinion with the statement, ‘So, in this case, do I’.

Andrew Lynch

Further Reading

John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 221Find this resource:

    Michael Coper, Encounters with the Australian Constitution (1987, popular edn 1988) ch 3Find this resource:

      Michael Coper and George Williams (eds), Justice Lionel Murphy: Influential or Merely Prescient? (1997)Find this resource:

        G P J McGinley, ‘The Search for Unity: The Impact of Consensus Seeking Procedures in Appellate Courts’ (1987) 11 Adelaide Law Review 203Find this resource:

          Cheryl Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996)Find this resource:

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