‘The Intelligence of a Future Day’:
The Vindication of Constitutional
Dissent in the High Court Australia –
1981-2003
ANDREW LYNCH*
Abstract
In this article the author aims to assess just how frequently earlier dissenting
judgments convince the High Court of Australia to overrule constitutional
precedent. The ability of dissents to pave the way for change in the law is
regularly cited as one of their virtues and has been used to justify repeated
statements of disagreement by judges who refuse to accept the correctness of the
majority’s view on certain issues. Through examination of a period of the court’s
recent history, this article shows that the direct reversal of a precedent in favour
of the minority opinion which accompanied it is actually very rare. This compels
a reappraisal of the perceived benefits and justifications of persistent dissent. In
line with this, the author argues that it is the capacity for dissension to exert an
indirect influence upon the court’s reasoning which, while far less dramatic, is its
more important contribution to the way in which the law develops.
1.
Introduction
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
1
* 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.
196
SYDNEY LAW REVIEW
[VOL 29: 195
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
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.
3 See Andrew Lynch, ‘Dissent: The Rewards and Risks of Judicial Disagreement in the High
Court of Australia’ (2003) 27 Melbourne University Law Review 724 at 726–744.
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) 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.
7 Monica Attard, Record of Interview of Justice Michael Kirby (2003) High Court of Australia
<http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_16nov.html> accessed 17 May 2007. See
also Al-Kateb v Godwin (2004) 219 CLR 562 at 622–23 (Kirby J); Brownlee v The Queen (2001)
207 CLR 278 at 314–5 (Kirby J).
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
197
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
8 Maurice Kelman, ‘The Forked Path of Dissent’ (1985) 6 The Supreme Court Review 227 at 254;
Lynch, above n3 at 765–7.
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) 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) 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.
198
SYDNEY LAW REVIEW
[VOL 29: 195
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
15 Commonwealth Constitution s 128.
16 Referenda are expensive and only eight in 44 proposals have succeeded.
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.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
199
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 Ltd19 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
Taxation21 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.
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.
19 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
(‘Engineers’ Case’).
20 Baxter v Commissioners of Taxation (1907) 4 CLR 1087.
21 Re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation (1947) 74 CLR 508.
22 Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372.
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.
200
SYDNEY LAW REVIEW
[VOL 29: 195
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
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.
25 See Spaeth & Segal, above n13, for a more restrictive approach.
26 Ibid.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
201
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
27
28
29
30
Id at 43.
Spaeth & Segal, above n13 at 7.
Lynch, above n10 at 498.
Peter McCormick, ‘Blocs, Swarms, and Outliers: Conceptualizing Disagreement on the Modern
Supreme Court of Canada’ (2004) 42 Osgoode Hall Law Journal 99.
202
SYDNEY LAW REVIEW
[VOL 29: 195
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
8033 (seven split decisions out of 10); s 9034 (eight split decisions out of 10); s
11835 (five split decisions out of seven); s 12236 (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
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’.
32 The power to make laws with respect to ‘external affairs’.
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.
35 Recognition of laws of states throughout 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.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
203
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
38 Cole v Whitfield (1988) 165 CLR 360.
204
SYDNEY LAW REVIEW
[VOL 29: 195
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
Corporation42 (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 Young43 (strictly limiting
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 (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.
43 Re Nolan; Ex parte Young (1991) 172 CLR 460. His Honour chose not to persist in dissent on
this issue alongside Deane J & Gaudron J in Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 39–
40 (McHugh J) (‘Re Tyler’).
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
205
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:
Each dissenting opinion is a confession of failure to convince the writer’s
colleagues, and the true test of a judge is his influence in leading, not in opposing,
his court.44
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
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.
45 Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 (‘Tasmanian Dams’).
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) 14 Melbourne University Law
Review 353.
47 Richardson v Forestry Commission (1988) 164 CLR 261.
48 Id at 298 (Wilson J).
49 Id at 320–1 (Dawson J).
50 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of
Australasia (1913) 17 CLR 261 at 278–9 (Isaacs J).
51 Richardson (1988) 164 CLR 261 at 321 (Dawson J).
52 Queensland v The Commonwealth (1989) 167 CLR 232.
206
SYDNEY LAW REVIEW
[VOL 29: 195
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
53 Id at 247–9 (Dawson J).
54 Victoria v The Commonwealth (Industrial Relations Act Case) (1995) 187 CLR 416 at 566–73
(Dawson J).
55 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529. The other cases were Dickenson’s
Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 and HC Sleigh Ltd v South Australia (1977)
136 CLR 475.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
207
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,
counsel representing a party does not require the permission of the Court to
present or to continue to present argument that is relevant to the decision in the
case, including argument seeking to show that a previous decision of the Court is
wrong and should not be followed.62
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:
The history of the Court demonstrates, many times, how changes in
circumstances and in membership of the Court can alter the outcome of great
constitutional questions. Sometimes a minority view on the meaning of the
Constitution will be propounded, contrary to authority accepted to that time, only
to emerge later as the doctrine of the Court. If a barrier of leave could be imposed
by a majority of Justices, to nip in the bud constitutional propositions inimical to
their expressed opinions, the advance and change of the Court’s understanding of
the Constitution, including that held by those for the time being in a minority,
could be thwarted. There is no warrant in the text of the Constitution for assigning
to some Justices of the Court a right to prevent others, in effect, from even
considering, with the benefit of full argument, and deciding, points of
constitutional principle which parties before the Court wish to propound. No
56 Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 (‘Evda Nominees’) at 316 (Gibbs CJ,
Mason, Murphy, Wilson, Brennan & Dawson JJ).
57 Philip Morris Ltd v Commissioner of Business Franchises (Vic) (1989) 167 CLR 399.
58 Capital Duplicators Pty Ltd v Australian Capital Territories [No. 2] (1993) 178 CLR 561.
59 Rainsong Holdings Pty Ltd v Australian Capital Territory (1993) 178 CLR 634.
60 Ha v New South Wales (1997) 189 CLR 465.
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).
62 Evda Nominees (1984) 154 CLR 311 at 316 (Deane J).
208
SYDNEY LAW REVIEW
[VOL 29: 195
doubt if a Justice or Justices find that their receptiveness to a new argument is not
shared by the majority, they would ordinarily co-operate in the expeditious
consideration of the point. The Court might, for practical reasons, impose time
limits, require written submissions or implement other like procedures. But the
exclusion of argument by a requirement to obtain leave is an impermissible
barrier to the elucidation of constitutional meaning. It is incompatible with the
text of the Constitution. It is the duty of this Court to uphold the meaning of that
text as it is properly understood – not as a majority of Justices for the time being
understand it. [Emphasis added.]63
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
63 Brownlee v The Queen (2001) 207 CLR 278 at 314–5 (Kirby J). See also, Re Colina; Ex parte
Torney (1999) 200 CLR 386 (‘Re Colina’) at 407 (Kirby J).
64 See text accompanying n39.
65 O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 267 (Brennan J).
66 See above n9; Edward Voss, ‘Dissent: Sign of a Healthy Court’ (1992) 24 Arizona State Law
Journal 643 at 650. Compare Kelman, above n8 at 255.
67 Engineers’ Case (1920) 28 CLR 129.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
209
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 expressed69 — 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
68 See especially, Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087; R v Barger
(1908) 6 CLR 41; Attorney-General (NSW) v Brewery Employees’ Union (NSW) (1908) 6 CLR
469; Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330.
69 As with the court’s acceptance in Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR
372 of Dixon J’s lone dissent in Re Foreman & Sons Pty Ltd; Uther v Federal Commissioner of
Taxation (1947) 74 CLR 508, which his Honour had not, despite it having been raised, referred
to in judgment in intervening cases.
210
SYDNEY LAW REVIEW
[VOL 29: 195
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:
• A narrow interpretation of the corporations power in s 51(xx);70
• A narrow definition of ‘excise’ in s 90;71
• A greater role for s 118’s recognition of ‘full faith and credit’ of state laws in
the resolution of choice of law questions;72
• A strict limitation of the jurisdiction of Commonwealth military tribunals so
as not to offend Chapter III’s separation of judicial power;73 and
• The independence from the legislature of s 80’s guarantee of trial by jury for
indictable offences.
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
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) 158 CLR 1 at 118–9 (Gibbs CJ),
202 (Wilson J) and 316 (Dawson J); Re Dingjan; Ex parte Wagner (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) 81 ALJR 34 at
81 (Gleeson CJ, Gummow, Hayne, Heydon & Crennan JJ).
71 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599 at 623 (Gibbs CJ) and 643–51
(Wilson J); Gosford Meats Pty Ltd v New South Wales (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) 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)
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) 1 CLR 497: Philip Morris Ltd v
Commissioner of Business Franchises (Vic) (1989) 167 CLR 399 at 478–80 (Toohey &
Gaudron JJ); Capital Duplicators Pty Ltd v Australian Capital Territory [No. 2] (1993) 178
CLR 561 at 616–7 (Dawson J) and 627–32 (Toohey & Gaudron JJ); Ha v New South Wales
(1997) 189 CLR 465 at 512 (Dawson, Toohey & Gaudron JJ).
72 Breavington v Godleman (1988) 169 CLR 41 at 98 (Wilson & Gaudron JJ) and 134–36 (Deane
J); McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 46 (Deane J) and 55 (Gaudron
J); Stevens v Head (1993) 176 CLR 433 at 461–2 (Deane J) and 464 (Gaudron J); Goryl v
Greyhound Australia Pty Ltd (1994) 179 CLR 463 at 477 (Deane & Gaudron JJ).
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
211
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 Bartley75) or had at least not yet been clearly dismissed
by a majority (Dawson J’s continued support in Re Dingjan76 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
73 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 585 (Deane J) and 603 (Gaudron J); Re Nolan;
Ex parte Young (1991) 172 CLR 460 at 489–90 (Deane J) and 498–9 (Gaudron J); Re Tyler
(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.
74 Bolton v Madsen (1963) 110 CLR 264.
75 Peterswald v Bartley (1904) 1 CLR 497.
76 Re Dingjan (1995) 183 CLR 323 at 346 (Dawson J).
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).
212
SYDNEY LAW REVIEW
[VOL 29: 195
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
neither of those [earlier] cases has a ratio decidendi...that does not mean that the
doctrine of stare decisis has no relevance or that the decisions in those cases have
no authority as precedents.79
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 EngineDrivers and Firemen’s Association of Australasia80 and Barwick CJ and Aickin J
in Queensland v The Commonwealth81 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.
78 The justices comprising the majority in Re Tracey; Ex parte Ryan (1989) 166 CLR 518, Re
Nolan; Ex parte Young (1991) 172 CLR 460 and Re Tyler (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).
79 Re Tyler (1994) 181 CLR 18 at 37 (McHugh J).
80 Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of
Australasia (1913) 17 CLR 261.
81 Queensland v The Commonwealth (1977) 139 CLR 585.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
213
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 Brown83 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
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.
83 R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 (‘Archdall’). The
Court’s first foray into the meaning of s 80 was in R v Bernasconi (1915) 19 CLR 629
(‘Bernasconi’).
84 Archdall (1928) 41 CLR 128 at 136 (Knox CJ, Isaacs, Gavan Duffy & Powers JJ).
85 The intentions of the framers in respect of s 80 is discussed quite differently by Clifford L
Pannam, ‘Trial by Jury and Section 80 of the Australian Constitution’ (1968) 6 Sydney Law
Review 1; Amelia Simpson and Mary Wood, ‘“A Puny Thing Indeed”: Cheng v The Queen and
the Constitutional Right to Trial by Jury’ (2001) 29 Federal Law Review 95.
214
SYDNEY LAW REVIEW
[VOL 29: 195
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
8090 — 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
86
87
88
89
90
91
92
93
94
95
R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 (‘Lowenstein’).
Lowenstein (1938) 59 CLR 556 at 581–2 (Dixon & Evatt JJ).
Lowenstein (1938) 59 CLR 556 at 583 (Dixon & Evatt JJ).
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) 94 CLR 86 at 88 (Dixon CJ).
See, for example, Zarb v Kennedy (1968) 121 CLR 283 at 294 (Barwick CJ).
Li Chia Hsing v Rankin (1978) 141 CLR 182 at 193 (Gibbs J) and 195–6 (Stephen & Jacobs JJ).
Beckwith v Regina (1976) 135 CLR 569 at 585 (Murphy J); Li Chia Hsing v Rankin (1978) 141
CLR 182 at 202 (Murphy J). His Honour concurred in the orders in each case.
Archdall (1928) 41 CLR 128 at 136 (Knox CJ, Isaacs, Gavan Duffy & Powers JJ).
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) 177 CLR 541; Katsuno v
Regina (1999) 199 CLR 40; Brownlee v Regina (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) 203 CLR 248 as a response to that of Kirby
J in Re Colina (1999) 200 CLR 386.
Kingswell v Regina (1985) 159 CLR 264 (‘Kingswell’).
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
215
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 Regina104 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 Torney105 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
96
97
98
99
100
101
102
103
104
105
106
107
Id at 318 (Deane J).
Id at 311 (Deane J).
Id at 309 (Deane J).
Id at 310–1 (Deane J).
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) 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).
Cheatle v Regina (1993) 177 CLR 541.
Re Tyler (1994) 181 CLR 18.
Byrnes v Regina (1999) 199 CLR 1.
Katsuno v Regina (1999) 199 CLR 40.
Re Colina (1999) 200 CLR 386.
Re Colina (1999) 200 CLR 386 at 420 (Kirby J).
Re Colina (1999) 200 CLR 386 at 422 (Kirby J).
216
SYDNEY LAW REVIEW
[VOL 29: 195
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 Section 80 has, in fact, worked perfectly to plan.
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
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.
109 Re Colina (1999) 200 CLR 386 at 423–4 (Kirby J).
110 Re Colina (1999) 200 CLR 386 at 439 (Callinan J); Cheng v Regina (2000) 203 CLR 248 at 344
(Callinan J). Justice Callinan uncritically accepted the Archdall interpretation in Brownlee
(2001) 207 CLR 278 at 341–2 (Callinan J).
111 Brown v Regina (1986) 160 CLR 171 at 214–5 (Dawson J) (‘Brown’).
112 Schick v United States 195 US 65 (1904).
113 Brown (1986) 160 CLR 171 at 215–6 (Dawson J).
114 Cheng v Regina (2000) 203 CLR 248 (‘Cheng’).
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
217
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.
115 Cheng (2000) 203 CLR 248 at 268 (Gleeson CJ, Gummow & Hayne JJ)
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) 203 CLR 248 at 268 (Gleeson CJ, Gummow & Hayne JJ). See Simpson and
Wood’s criticism of this stance, above n85 at 104–5.
117 Cheng (2000) 203 CLR 248 at 291 (McHugh J).
118 Id at 292 (McHugh J).
119 Id at 295 (McHugh J).
120 Pannam, above n85.
218
SYDNEY LAW REVIEW
[VOL 29: 195
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 Regina123 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
121 Re Colina (1999) 200 CLR 386 at 426–7 (Kirby J).
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.
123 Cheng (2000) 203 CLR 248 at 291 (McHugh J).
124 Id at 295 (McHugh J).
125 Michael Coper, ‘Commentary’ in Coper and Williams, above n12 at 66.
126 Grant Webster, ‘Trial by Jury? Re Colina; Ex parte Torney’ (2000) 5 Deakin Law Review 217
at 224.
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.
128 Meagher, above n108 at 167.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
219
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
129 Cheung v Regina (2001) 209 CLR 1 at 38 (Kirby J).
130 Richard Primus, ‘Canon, Anti-Canon, and Judicial Dissent’ (1998) 48 Duke Law Journal 243.
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).
132 Kingswell (1985) 159 CLR 264 at 318 (Deane J).
133 Mark Kadzielski & Robert Kunda, ‘The Origins of Modern Dissent: the Unmaking of Judicial
Consensus in the 1930’s’ (1983) 15 University of West Los Angeles Law Review 43 at 55.
220
SYDNEY LAW REVIEW
[VOL 29: 195
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 Australia136 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
134 As, for instance, offered by Windeyer J in Victoria v The Commonwealth (1971) 122 CLR 353
at 396 (Windeyer J).
135 Henry v Boehm (1973) 128 CLR 482.
136 Davies and Jones v Western Australia (1904) 2 CLR 29.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
221
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
137 Henry v Boehm (1973) 128 CLR 482 at 501–2 (Stephen J).
138 Street v Bar Association (Qld) (1989) 168 CLR 461.
139 Id at 484–86 (Mason CJ); 517–18 (Brennan J); 532 (Deane J); 549 (Dawson J); 568 (Gaudron
J) and 587 (McHugh J).
140 Pochi v Macphee (1982) 151 CLR 101 (‘Pochi’).
141 Id at 109–10 (Gibbs CJ).
142 Id at 111 (Gibbs CJ).
143 Nolan v Minister for Immigration & Ethnic Affairs (1988) 165 CLR 178 (‘Nolan’).
222
SYDNEY LAW REVIEW
[VOL 29: 195
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:
it is not, in my view, open to the Parliament to effect that transformation by simply
redefining the criterion for admission to membership of the community
constituting the body politic of Australia. Nor, in my view, does a mere failure on
the part of a non-alien to acquire citizenship involve any fundamental alteration
of his or her relationship with that community … mere inactivity in the face of
legislative change (perhaps not understood by, or not known to, the person
concerned) cannot, in my view, transform a non-alien into an alien.146
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 nonalien 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 noncitizen 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
144
145
146
147
148
Id at 184–6 (Mason CJ, Wilson, Brennan, Deane, Dawson & Toohey JJ).
Id at 190–2 (Mason CJ, Wilson, Brennan, Deane, Dawson & Toohey JJ).
Id at 193 (Mason CJ, Wilson, Brennan, Deane, Dawson & Toohey JJ).
Ibid.
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’).
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
223
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:
Any consideration of the significance to be attached to Patterson must involve the
determination whether Patterson was effective to take the first step of overruling
the earlier decision in Nolan v Minister for Immigration and Ethnic Affairs. In our
view, the Court should be taken as having departed from a previous decision,
particularly one involving the interpretation of the Constitution, only where that
which purportedly has been overthrown has been replaced by some fresh
doctrine, the elements of which may readily be discerned by the other courts in
the Australian hierarchy. On that approach to the matter…the decision in
Patterson plainly fails to pass muster.152
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:
The success of the Minister’s persistent submission in the conclusion of the new
majority gathered in this case, following a change of membership of the Court, is
a sharp reminder of the opinionative character of constitutional doctrine. Some
citizens and some judges may wish that it were otherwise; but ultimately a case
such as the present obliges us to face the facts. About such questions what matters
in the end is the conclusion of a majority of this Court. Indeed, there could not be
a clearer illustration of that truth. Reason, history, principle, words, adverse risks
and legal precedent, all bend in the wind of transient majorities. One day, if a
larger challenge comes than is presented by Mr Shaw’s unhappy case, it may be
hoped that a new majority in this Court will gather around the view of the
Constitution favoured by the majority in Re Patterson and that that view will be
restored.153
149
150
151
152
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162.
Id at 170 (Gleeson CJ); 186 (McHugh J); 200 (Gummow J) and 220 (Hayne J).
Shaw v Minister for Immigration & Multicultural Affairs (2003) 218 CLR 28.
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.
153 Shaw v Minister for Immigration & Multicultural Affairs (2003) 218 CLR 28 at 72 (Kirby J).
224
SYDNEY LAW REVIEW
[VOL 29: 195
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
Commonwealth156 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
154
155
156
157
158
159
160
See the quotation from Justice Kirby, at n63.
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106.
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104 (‘Theophanous’).
McGinty v Western Australia (1996) 186 CLR 140 (‘McGinty’).
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (‘Lange’).
Geoff Lindell, ‘Expansion or Contraction? Some Reflections About the Recent Judicial
Developments on Representative Democracy’ (1998) 20 Adelaide Law Review 111 at 137;
Nicholas Aroney, ‘The Structure of Constitutional Revolutions: Are the Lange, Levy and Kruger
Cases a Return to Normal Science?’ (1998) University of New South Wales Law Journal 645 at
653–4; Andrew Lynch, ‘Unanimity in a Time of Uncertainty: The High Court Settles Its
Differences in Lange v Australian Broadcasting Corporation’ (1997) 6 Griffith Law Review 211.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
225
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 periods161 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 Commonwealth167 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
161 Theophanous (1994) 182 CLR 104 at 203 (McHugh J).
162 Id at 205 (McHugh J); Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
(‘Stephens’) at 259 (McHugh J).
163 Lange (1997) 189 CLR 520 at 566–7 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh,
Gummow & Kirby JJ). See McHugh J’s earlier judgment in McGinty (1996) 186 CLR 140 at
169 (McHugh J).
164 Lange (1997) 189 CLR 520 at 560 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh,
Gummow & Kirby JJ). See also, Levy v Victoria (1997) 189 CLR 579 at 622 (McHugh J). For
a thorough critique of this result, see Adrienne Stone, ‘Rights, Personal Rights and Freedoms:
The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law
Review 374.
165 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 331
(Callinan J); Roberts v Bass (2002) 212 CLR 1 at 102 (Callinan J).
166 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (‘ACTV’).
167 Cunliffe v The Commonwealth (1994) 182 CLR 272 (‘Cunliffe’).
168 Langer v Commonwealth (1996) 186 CLR 302 (‘Langer’).
226
SYDNEY LAW REVIEW
[VOL 29: 195
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 Ltd169 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 communication172 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 implication174 remains a legitimate response and
169 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 280
(Kirby J) and 331 (Callinan J)
170 Roberts v Bass (2002) 212 CLR 1 at 55 (Kirby J) and 102 (Callinan J).
171 McGinty (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) 182 CLR 104 at 149 (Brennan CJ).
172 Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 582 (Murphy J). See also Ansett
Transport Industries (Operations) Pty Ltd v Commonwealth (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.
173 Alan Paterson, The Law Lords (1982) at 101.
174 ACTV (1992) 177 CLR 106 at 182–4 (Dawson J); Theophanous (1994) 182 CLR 104 at 193
(Dawson J); Cunliffe v Commonwealth (1994) 182 CLR 272 at 361–3 (Dawson J).
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
227
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?
175 Miller v TCN Channel Nine Pty Ltd (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.
177 Theophanous (1994) 182 CLR 104 at 187–8 (Deane J).
178 In addition to the cases included in this study post-Lange, see the more recent decisions of
Coleman v Power (2004) 220 CLR 1, Mulholland v Australian Electoral Commission (2004)
220 CLR 181 and APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322.
228
SYDNEY LAW REVIEW
[VOL 29: 195
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.
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.
180 Re F; Ex parte F (1986) 161 CLR 376.
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
229
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.
181 Ibid at 391 (Mason & Deane JJ). The cases in particular were Gazzo v Comptroller of Stamps
(Vic) (1981) 149 CLR 227; In the Marriage of Cormick (1984) 156 CLR 170; and The Queen v
Cook; Ex parte C (1985) 156 CLR 249.
230
SYDNEY LAW REVIEW
[VOL 29: 195
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
s7
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
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
231
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
232
SYDNEY LAW REVIEW
[VOL 29: 195
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
GovernorGeneral’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 Intergovernmental
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
2007] CONSTITUTIONAL DISSENT IN THE HIGH COURT OF AUSTRALIA FROM 1981–2003
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
– Acquisition
of property
1
205/399
– Amendment
2
149/79, 207/344
– Courts
2
211/1, 211/119
– Crown
immunity
1
198/334
– extraterritoriality 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
State
Constitutional
Matters
233
234
SYDNEY LAW REVIEW
[VOL 29: 195