The Chief Justice of the High Court, Susan Kiefel, has revealed the court has changed the way it works and judges meet regularly as they prepare judgments.

Until recently the court rarely held more than one meeting after a hearing – and that usually lasted less than an hour.

Now, she says, the seven justices “are willing participants in longer, and sometimes multiple, conferences” as they search for common ground and clarity.

“There is a well understood aim to reduce the number of individual judgments of the majority,” the Chief Justice says in a soon-to-be-published paper.

The current bench of the High Court. Michelle Gordon, Patrick Keane, Virginia Bell, Susan Kiefel (Chief Justice), ...
The current bench of the High Court. Michelle Gordon, Patrick Keane, Virginia Bell, Susan Kiefel (Chief Justice), Stephen Gageler, Geoffrey Nettle, and James Edelman.

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The unprecedented look inside the court follows a report in The Australian Financial Review on voting patterns on the court. The current bench has historically low levels of dissent – 2.6 per cent (Kiefel) to 12.2 per cent (Justice Stephen Gageler) – and is delivering fewer judgments. In 2017, there was a single opinion in 34 per cent of cases. This year, there were 15 single judgments in the first 17 cases.

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The most common voting bloc on the court is comprised of the Chief Justice and Justices Virginia Bell and Patrick Keane, who agree in 97 per cent of cases. It has led to comment that they are dominating the court and have becoming the “most powerful bloc” of judges in the history of the court.

However, prominent High Court advocate David Jackson QC says he has not been conscious of them developing as “a unit within a unit”, unlike other combinations of judges.

‘Certainty and clarity’

The Chief Justice said the current bench accepts “that it is more important for the purposes of certainty and clarity, and for confidence in the judgments of the Court, that there be one judgment if possible and as few as possible otherwise.

“This requires a judge to think institutionally rather than individualistically.”

This has been most obvious in criminal cases where it is important to give clear guidance to trial judges. However, the citizenship cases – and other more contentious constitutional law cases – have also been resolved in single opinions.

Since 1998, there has been a conference after a hearing at which a judge might be assigned the role of preparing a judgment for the majority. But Chief Justice Kiefel says that “once the process of writing a judgment commences, views tend to become entrenched”.

“We have now found that if views are divergent or there is no clear majority, so long as another meeting is arranged in a short period of time, that problem may be overcome. We are also finding that further meetings, where we can concentrate on the ‘sticking points’, tend to be quite fruitful.”

Chief Justice Kiefel: "There is a well understood aim to reduce the number of individual judgments of the majority."
Chief Justice Kiefel: “There is a well understood aim to reduce the number of individual judgments of the majority.”

In the paper, which is based on a talk the Chief Justice gave at Oxford University last month, she cites one case where there was no clear majority opinion even though four of the five sitting justices agreed on the outcome.

“The justices involved met a number of times to discuss divergences and the correctness of the views stated. In the end result, one justice was persuaded to the contrary of the justice’s initial view and three of the four were able to produce one majority judgment.”

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