Report from Australia

About the Court Today

The jurisdiction of the High Court of Australia extends far beyond the determination of matters arising under the Commonwealth Constitution or involving its interpretation. Strangely this is recognised in the Constitution only as an area upon which the Commonwealth Parliament may confer original jurisdiction on the Court, which it did in legislation for the Court’s establishment: Judiciary Act 1903 (Cth), s 30(a). Under section 73(ii) of the Constitution, the High Court hears appeals from ‘any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State’. Thus the Court is not a specialist constitutional court and decides a broad range of cases each year. Since 1984, the Court has been in control of its own docket with litigants needing special leave to appear before it.

For much of its life, the Court has been composed of seven Justices, but not all Justices sit in each case – a Full Court is defined simply as two or more Justices sitting together. However, it is unusual for less than five Justices to sit on a matter and this is frequently expanded to all seven in many constitutional or controversial cases. A range of statistics including the number of applications for leave, matters referred to the Court by other courts for determination and the breakdown of civil and criminal cases heard over a financial year are released in an appendix to the High Court’s Annual Report.

Additionally, statistical information with the aim of revealing something of the way in which the judges on the Court decide cases is now being independently produced on a yearly basis.* The most recent study includes a breakdown of the Court’s operation as follows:

Table 1 – High Court of Australia Matters Tallied for 2006

Unanimous By concurring opinions Majority over dissent TOTAL
All Matters Tallied for Period 13 (20.63%) 18 (28.57%) 32 (50.79%) 63 (100%)
All Constitutional Matters Tallied for Period 1 (9.09%) 4 (36.36%) 6 (54.55%) 11 (100%)

It should be made clear that unlike the United States Supreme Court, the High Court of Australia has always delivered its opinions in seriatim. Although, simultaneously with reports of improved conferencing processes at the Court, the frequency of joint judgments has risen in the last two decades the traditional emphasis remains upon the individual rather than the institutional voice. (For a comprehensive empirical analysis of the judgment delivery patterns over the Court’s first century, see Matthew Groves & Russell Smyth, ‘A Century of Judicial Style: Changing patterns in Judgment Writing on the High Court 1903-2001’ (2004) 32 Federal Law Review 255.)

Some of these results for the last calendar year are typical of the High Court’s performance in recent years under Chief Justice Murray Gleeson. The number of cases overall which produce a split bench as to the result has generally been about 50% for some time now. Likewise, the proportion of matters decided unanimously has hovered around 20%. At the beginning of the Gleeson era in the late 1990s, unanimity was much rarer.

The small number of constitutional matters decided in 2006 gives an indication as to just how much other work the Court does. Earlier years have seen a much higher proportion of these matters overall but it does tend to fluctuate quite markedly. Unanimity has, perhaps unsurprisingly, proven largely elusive in this context while the percentage of constitutional cases featuring dissenting opinions has, unlike the same figure overall, varied quite a lot year to year.

The annual shifts in statistical results for the Court as an institution are particularly interesting given the remarkable steadiness in respect of figures accounting for the judgment delivery of individual justices. With a few small exceptions and leaving to one side Justice Susan Crennan for whom 2006 was the first year on the Court, the results in the next table are a solid indication of where, for some years now, the members of the Gleeson Court have been finding themselves in relation to the decisions they reach as a group.

TABLE 2 – Actions of Individual Justices: All Matters

Number of Judgments Participations in unanimous judgments Concurrences Dissents
Gleeson CJ 55 11 (20.00%) 40 (72.73%) 4 (7.27%)
Gummow J 55 12 (21.82%) 42 (76.36%) 1 (1.82%)
Kirby J 58 9 (15.52%) 21 (36.21%) 28 (48.28%)
Hayne J 53 10 (18.87%) 41 (77.36%) 2 (3.77%)
Callinan J 38 6 (15.79%) 28 (73.68%) 4 (10.53%)
Heydon J 58 11 (18.96%) 38 (65.52%) 9 (15.52%)
Crennan J 46 8 (17.39%) 38 (82.61%) 0 (0%)

The earlier table showed a high percentage of cases decided by a divided bench, and we might have assumed that this would be reflected in several – if not all – the dissent rates for the individuals of which the Court is composed. But this is manifestly not the case. Most Justices dissent only rarely. It is worth pointing out that even the modest percentage of Justice Heydon’s opinions which were delivered in minority – and which is relatively high in comparison to the bulk of his colleagues – was at least double his rate of such judgments in any preceding year.

The reality is that dissent on the Court is largely voiced by Justice Kirby alone – with his Honour formally disagreeing with the orders of the Court in every second case in which he sat. While Kirby J’s dissent rate for the year constituted a personal – and institutional – record, it is not much of an aberration from his usual position in earlier years. It is also not unreasonable to assume that his Honour’s propensity to disagree with his colleagues plays a part in inhibiting the ability of the Court to secure a greater number of unanimous judgments. His Honour has regularly acknowledged that he is outside the mainstream of opinion on the Court but expressed the view that his opinions may be vindicated at some point in the future.

The Chief Justice and Justices Gummow and Hayne have all maintained extremely low dissent rates over the course of their time on the Court. The latter two tend to join in authoring opinions far more often they write singly, thus constituting a powerful presence on the Court. In 2006, their Honours wrote as one in all 11 constitutional decisions and Justice Crennan joined them in the eight of those cases in which she also sat.

On the whole, the present High Court displays a high level of jurisprudential homogeneity amongst its members other than Justice Kirby and this is reflected in the simple empirical snapshot above. The Justices on the Court in earlier decades more frequently divided and not always in predictable ways over the matters before them.

Recent Decisions

It might be thought difficult to select High Court cases from the last year for particular attention, but two in particular readily present themselves as ones of unusual significance and interest.

“Wrongful Life”

Harriton v Stevens [2006] HCA 15 was an appeal from the Court of Appeal in the State of New South Wales which had decided 2:1 to reject a claim of medical negligence brought by a young woman with severe disabilities against the general practitioner who failed to diagnose her mother’s rubella infection during pregnancy. As a consequence, the doctor had not warned the appellant’s mother of the risk that her unborn child would possess serious disabilities thereby depriving her of information which, it was claimed, would have led her to terminate the pregnancy. The appellant was, in effect, seeking damages for her having been born severely disabled when, had the doctor fulfilled his duty, she would not have been born at all.

‘Wrongful birth’ cases of this sort have arisen in a number of overseas jurisdictions and the Court referred to these – most notably the English Court of Appeal’s decision in McKay v Essex Are Health Authority [(1982) 1 Q.B. 1166] – at some length. The leading majority opinion dismissing the appeal was delivered by the Court’s newest member, Justice Crennan, with whom the Chief Justice and Justices Gummow and Heydon agreed without making further comment. Justices Hayne and Callinan delivered concurring opinions while Justice Kirby dissented.

Although the case featured a number of controversial issues, the chief stumbling block to obtaining relief was the failure of the appellant to satisfy the Court that she had sustained damage as a result of her having been born. In assessing damage, the correct test was not to compare the appellant’s life with disability against what her life would have been like without. It was pointed out that the effect of her mother’s rubella infection was that ‘a life without special pain and disabilities was never possible for the appellant, even before any failures by [the doctor]’ [para. 270]. Instead, under usual tortious principles, the appellant needed to establish that her non-existence would have been preferable to her life with disabilities. For them to accept such an argument was, the majority agreed, ‘impossible’ [paras. 170, 205, 253].

Justice Kirby felt no such difficulty, saying:

Clearly, people can sometimes express a preference for non-existence. The law has recognised this by declaring it lawful, in certain circumstances, for medical practitioners to accede to requests by the terminally ill to cease treatment that is keeping them alive but at the price of subjecting them to intolerable pain and suffering. It is also reflected in changes to the law on suicide. [para. 104]

Additionally, His Honour was dismissive of denying the appellant compensation ‘merely because logical problems purportedly render that damage insusceptible to precise or easy quantification’ [para. 96].

Speaking for the majority, Justice Crennan distinguished the significance of ‘shifts in any absolute value given to human life (if such shifts have occurred)’ from the task of stating a duty of care ‘in respect of damage which cannot be proved by persons alleging such a duty has been breached, and which cannot be apprehended by persons said to be subject to the duty, and which cannot be apprehended or evaluated by a court (or jury)’ [para. 254]. In short, there was nothing ‘mere’ about the logical difficulties presented by the appellant’s claim:

Imaginative access to non-existence, not based on experience, or on a proved sub-stratum of fact, cannot assist a court or jury in the forensic tasks necessary to determine a claim such as that of the appellant. [para. 253]

Beyond their inability to determine damage, members of the majority also highlighted that the element of causation in a case such as this was inherently complicated given that the decision to terminate the pregnancy lay not with the doctor by the mother. [See especially paras. 170-181.]

In her reasons, Justice Crennan also addressed the important policy dimensions underlying the action, stating it was ‘odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born into a life with disabilities’ [para. 258]. While Justice Kirby had rejected such views by saying that allowing the appellant’s claim would actually provide her with very real empowerment [para. 122], the Court could not reconcile the heart of her case with values on the importance of life expressed throughout the common law and statute. As Crennan J concluded, ‘life with disabilities, like life, is not actionable’.

The Commonwealth’s Dominance of Constitutional Power

The major public law case in 2006 – indeed in many a year – was New South Wales v Commonwealth [2006] HCA 52 known as the Work Choices case after the Commonwealth legislation under challenge. The Workplace Relations Amendment (Work Choices) Act 2005 was a controversial enactment by which the Commonwealth government aimed to radically change the industrial relations system in Australia by enabling much greater flexibility for employers in setting workers’ conditions. Simultaneously, it introduced restrictions on the access and activities of trade unions.

The unions obviously had great interest in challenging the new Commonwealth law, but they were joined by five of the six Australian states. All States are presently governed by the Australian Labor Party, while power at the Commonwealth level is in the hands of the Liberal-National Party Coalition. Competing ideologies over the regulation of the workplace clearly underpinned the opposition of the State governments to this new federal initiative.

But for the States, there was an even more central consideration at play. Under the Commonwealth Constitution no express grants are made to the States – they can only claim the residue of legislative power not accorded to the central government. Given the pervasive presence of the corporation in modern life, an unlimited power to regulate all things concerning such entities presented the distinct possibility that, through just that grant alone, the Commonwealth would possess powers of law-making which rendered largely otiose those limits upon the other grants to it. Put simply, the case went to the very balance of power in Australia’s federal system.

In establishing a national industrial relations system by this legislation, the government relied upon the power with respect to ‘foreign, trading and financial corporations’ granted to it by s 51(xx) the Constitution. This was used instead of the power granted under s 51(xxxv) of the Constitution over industrial relations matters, chiefly because the latter is expressed in very narrow terms to enable only laws with respect to ‘Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’.

The main argument against the Act pointed to the clear intention by the Constitution’s drafters that the ability to determine worker’s rights and conditions should lie largely with the States. It was submitted that allowing the Commonwealth to take control of this area by means of another of its legislative powers – one which is not directly concerned with industrial relations at all – makes a mockery of this. The Commonwealth’s power with respect to corporations should be read in light of the Constitution as a whole – and the conscious decision made by the drafters to elsewhere give the Commonwealth only a rather limited capacity to legislate on industrial matters.

The High Court’s 5-2 rejection of this attack (and all others made by the States and unions) so as to uphold the Act was an entirely orthodox application of the constitutional methodology which has prevailed since the case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘the Engineers’ Case‘) in 1920. In that case the Court laid down a method of constitutional interpretation which favoured a broad reading of the powers expressly granted to the Commonwealth. Implicitly this means that each should be read according to its own terms without worrying about the scope of other powers – and certainly not what is left over for the States. This was specifically confirmed in respect of the power to legislate for corporations in Strickland v Rocla Concrete Pipes Ltd The plaintiffs in Work Choices did not seek leave to challenge either the Engineers Case or the Concrete Pipes Case but realistically, in order for them to have succeeded the Court would have had to fundamentally reappraise the constitutional methodology underlying those decisions (hence the observation by the majority that ‘the plaintiffs experienced difficulty in accommodating their submissions to those developments’) [para. 72].

The majority rejected a number of suggested restrictions which the plaintiffs would have placed upon the corporations power, as being ultimately derived from a conception of ‘federal balance’. They were clear in their view that such considerations could have no bearing upon the interpretation of the grants of power made by the Constitution to the Commonwealth – essentially an appeal to ‘federal balance’ was devoid of content through which the reach of the power could be conclusively determined [para. 196].

The two dissenting judges – Justices Kirby and Callinan – did attempt to restore both considerations of federal balance to the Court’s constitutional methodology. Both lamented the likely effect of the majority’s decision with Callinan J going as far as to say: ‘The reach of the corporations power, as validated by the majority, has the capacity to obliterate powers of the State hitherto unquestioned. This Act is an Act of unconstitutional spoliation.’ [para. 834]. Elsewhere his Honour stressed his objection to the consequences of the majority’s decision in the clearest of terms:

There is nothing in the text or the structure of the Constitution to suggest that the Commonwealth’s powers should be enlarged, by successive decisions of this Court, so that the Parliament of each State is progressively reduced until it becomes no more than an impotent debating society. This Court too is a creature of the Constitution. Its powers are defined in Ch III, and legislation made under it. The Court goes beyond power if it reshape the federation. By doing that it also subverts the sacred and exclusive role of the people to do so under s 128. [para. 819]

Justice Kirby listed those areas where he thought diminishment of State control to be likely:

The States, correctly in my view, pointed to the potential of the Commonwealth’s argument, if upheld, radically to reduce the application of State laws in many fields that, for more than a century, have been the subject of the States’ principal governmental activities. Such fields include education, where universities, tertiary colleges and a lately expanding cohort of private schools and colleges are already, or may easily become, incorporated. Likewise, in healthcare, where hospitals (public and private), clinics, hospices, pathology providers and medical practices are, or may readily become, incorporated. Similarly, with the privatisation and out-sourcing of activities formerly conducted by State governments, departments or statutory authorities, through corporatised bodies now providing services in town planning, security and protective activities, local transport, energy, environmental protection, aged and disability services, land and water conservation, agricultural activities, corrective services, gaming and racing, sport and recreation services, fisheries and many Aboriginal activities. All of the foregoing fields of regulation might potentially be changed, in whole or in part, from their traditional place as subjects of State law and regulation, to federal legal regulation, through the propounded ambit of the corporations power. [para. 579]

It remains to be seen whether those consequences will come to pass. The immediate reaction to the decision was for some State Premiers to call for a constitutional convention to address the state of Australia’s federal division of powers, while the Prime Minister offered assurances of Commonwealth restraint in acting on the decision. Regardless, such forecasts as to what might occur using a broad power with respect to corporations cannot serve as a response to the Court’s traditional reluctance to read the Constitution so as to preserve some particular political conception of the federal compact. Instead, the method laid down in Engineers is to interpret the document according to its plain and ordinary meaning. The difficulty for the plaintiffs – and the dissenting judges – is that at the end of the day the power over corporations contains nothing to narrow the ways in which the Commonwealth may choose to legislate for them.


These two decisions are noteworthy in that they both contribute to broader constitutional debates taking place in Australia. Harriton v Stevens, a civil action, effectively illustrates the hollowness of those arguments against the creation of a national Bill of Rights for Australia which suggest that this will open the way to judges deciding controversial moral and policy issues. This case is an ample demonstration that those are exactly the kind of questions which courts deal with already – but in Australia without the benefit of any recourse to an instrument of human rights.

The Work Choices decision is directly relevant to the gathering momentum for a lasting solution to be found to the many problems and inefficiencies in Australia’s federal system. Since the judgments were handed down, there has been significant political and community attention to ways forward in reforming our constitutional division of power. With a Commonwealth election due before the end of 2007, this has emerged as an issue upon which both the government and the opposition are offering competing visions.

* Andrew Lynch, ‘The Gleeson Court on Constitutional Law: An Empirical Analysis of its First Five Years’ (2003) 26 University of New South Wales Law Journal 32; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2003 Statistics’ (2004) 27 University of New South Wales Law Journal 88; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2004 Statistics’ (2005) 28 University of New South Wales Law Journal 14; Andrew Lynch and George Williams, ‘The High Court on Constitutional Law: The 2005 Statistics’ (2006) 29 University of New South Wales Law Journal 182. [back]

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