High Court judges in furious agreement as dissent declines

The deep divisions that were once apparent on the High Court have almost disappeared.

Chief Justice of the High Court of Australia Susan Kiefel after being sworn in. Picture: Kym Smith

The deep divisions that were once apparent on the High Court have almost disappeared with none of the seven judges coming close to the dissent rates of the recent past.

The latest study of the High Court’s rulings shows that Justice Stephen Gageler dissented most frequently last year — in 15 per cent of his judgments.

This is well short of the dissent rates of the court’s two great dissenters — former judges Dyson Heydon and Michael Kirby.

When Robert French was Chief Justice, Justice Heydon was the standout dissenter with an overall dissent rate of 29 per cent compared to 6 per cent for the judges serving alongside him.

Justice Heydon followed an even greater dissenter, Justice Michael Kirby. In 2006, Justice Kirby disagreed with the majority of the other judges in 48.28 per cent of his decisions.

On the current court, Chief Justice Susan Kiefel was the only member of the bench who delivered no dissenting judgments last year. Her record was almost matched by Justices Virginia Bell and Pat Keane, who dissented just once.

On constitutional matters, the figures compiled by Professor Andrew Lynch with assistance from Zoe Graus reveal a high level of agreement. Just two of the seven judges dissented in constitutional cases — Justice Michelle Gordon (once), and Justice James Edelman (twice).

The figures assembled by Professor Lynch and Ms Graus show there were no joint dissents last year and in just three cases were there more than one dissenter.

Their study shows that only one case featured seven separate opinions — Kendrijan v Lepore — and this was due to the High Court’s “welcome case” tradition in which a newly appointed judge writes the lead opinion and the others deliver a brief concurrence.

Justice Gageler’s dissent rate of 15 per cent was followed by that of Justice Edelman and Justice Geoffrey Nettle, who dissented in just over 11 per cent of their ­decisions.

Justice Gageler was also the member of the court with the lowest participation rate in unanimous judgments — 25 per cent. Justice Keane had the highest participation rate in unanimous judgments — 38.6 per cent.

The figures show that Chief Justice Kiefel and Justice Keane were the most frequent collaborators on joint judgments in all categories of matters.