The impact of dissenting opinions upon thedevelopment of Australian constitutional law

Abstract

This thesis aims to assess the role played by disagreement in the High Court’s constitutional law decisions. It does so firstly by considering the theoretical arguments in favour of allowing expression of dissent and those which urge judicial restraint and observance of precedential values. The tensions between change and conformity, and also the individual and institutional aspects of adjudication, intersect when the Court divides.

The complex nature of disagreement on a multimember judicial body is further examined in the context of devising an empirical methodology for the quantification of dissent on the High Court. The thesis selects a period of a little over twenty years for detailed examination. Within that timeframe, it measures the prevalence and nature of disagreement amongst the Justices of the Court, with particular emphasis upon constitutional cases.

From these results, various streams of opinion are examined for subsequent significance. In particular, the thesis contrasts the practice of persistent dissent from the Court’s approach to an issue, with those occasions when a minority Justice yields to the demands of stare decisis. The impact of dissent upon the development of the Court’s constitutional interpretation is evaluated. Although the study finds that direct reversals in the law in favour of an earlier dissent occur very rarely, it argues that dissents may still exercise a powerful influence on the Court’s pronouncements. The contribution which minority opinions make to judicial deliberation is to inevitably alter the context of the Court’s decision. Consideration of two specific case studies illustrates that this may result in the law taking a more moderate path or may actually lead to greater efforts by a majority to strengthen the cogency of its approach. In either scenario, dissent plays a far more subtle role than suggested by the myth of a ‘Great Dissenter’ and the dramatic redemption of his or her lone opinions. To only assess the value of dissenting judgments against that standard is to fail to appreciate the true nature of their influence in many cases and their importance to the work of the High Court.