News: Who wrote the Mason Court’s joint judgments?

Monday evening was the launch of the latest ‘thematic’ issue of the UNSW Law Journal. This issue’s theme is ‘The Individual Judge’, which is also the title of Kiefel CJ’s 2014 speech and paper, where she first said ‘collegiality is not compromise’. The paper is one of three where she has defended the High Court’s practice of attributing judgments largely written by one judge to all the judges who agreed with it. While there is much of interest in the new issue of the UNSWLJ, only one of the articles responds directly to Kiefel CJ’s stance. The paper by Andisheh Partovi et al sets out five arguments for correctly attributing authorship of judgments: ensuring individual accountability (an argument I also put here), discouraging free riding, and serving the interests of judges, academics and lawyers. More importantly, the authors acted on their views by outing the likely authors of the joint judgments of the High Court from 1987 to 1995, when Sir Anthony Mason was Chief Justice. Needless to say, their list is absolutely fascinating.

So, who, out of the eight judges who sat in that period, likely wrote the most important joint judgments of the Mason Court? Mason. In particular, the authors think Sir Anthony was very probably the author of the following five constitutional joint judgments

out of 11 that they could attribute with a high probability, and a further 13 non-constitutional joint judgments (including the Newspaper Rule and Spycatcher cases, as well as the likes of Myer Emporium and M v M) out of 76 such judgments. More generally, they found that Mason CJ, Brennan and Deane JJ together wrote nearly half of the joint judgments of the Mason Court. The method used to make these determinations is described in the paper at length. In short, it requires processing edited text files of the judgments for the presence and frequency of various words and word combinations, and parts of speech and combinations. The paper includes table of the various judges’ linguistic tells, for example identifying Mason’s use of phrases such as ‘the respective’ and ‘might be’, and his frequent use of ‘Wh-‘ pronouns, compared to (say) Gaudron J ,who likes to use ‘context’,  ‘and thus’ and adverbs.

If the paper’s list of the very probable authors of some 87 Mason Court joint judgments isn’t interesting enough, there is also the potential future uses of their methodology. As the authors say:

Future research could examine attribution of authorship in joint judgments in other eras of the High Court’s history, such as the French Court, or for other Australian courts.

Such research could yield insights into shifts in High Court practice. For instance, I’d be curious to see whether the paper’s finding that all judges in the Mason Court wrote at least one criminal law joint judgment would be replicated in more recent courts. In his foreword to the thematic issue, former Chief Justice Robert French said that Partovi et al’s paper:

makes for fascinating, if rather unsettling, reading. It might encourage movement towards express attribution of authorship in judgments, particularly if the technique of computational linguistics creates a non-trivial probability of identifying the wrong person.

The paper in fact canvasses the risk of error at length, noting various reasons why the chance of mis-attribution of the high probability judgment writers, while non-trivial, is not high, while urging a ‘cautious approach’ in the case of a further thirty or so other judgments where the probability of the attributions is less high. I fully expect that all future academic works on any joint judgment of the Mason court will include a footnote to Partovi et al’s paper, noting any high probability attribution they make. And I would be thrilled if they or someone else does the hard work to allow similar footnotes for all High Court joint judgments, including future ones.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

7 thoughts on “News: Who wrote the Mason Court’s joint judgments?

  1. I was fascinated to see that one of the high probability attributions was for a 1991 case called Robinson v R, which was a focus of my PhD thesis. The paper identifies the unanimous joint judgment by the High Court to Mason, Brennan, Deane, Toohey and McHugh JJ (which held that trial judges cannot refer to the accused’s interest in the outcome of a trial) as most likely authored by McHugh J. That makes sense, as McHugh J is one of the High Court’s leading evidence lawyers and he complained in a later special leave hearing about lower courts ‘again and again’ paying only ‘lip service’ to the High Court’s ruling. But it is also of some (small) interest, because, seven years later, Brennan CJ and McHugh J, the only two participants in the Robinson joint judgment still on the High Court by then, differed on their understanding of the case. In Palmer v R, Brennan CJ was part of a joint judgment that barred cross-examining the accused on the complainant’s motive to lie, while McHugh J dissented, stating that ‘I do not think that allowing such cross-examination of the accused is contrary to this Court’s decision in Robinson v The Queen‘. It seems that he would know.

    • Are High Court working papers ever released, in the manner of Cabinet papers being released under the so-called 30 year rule?

      It seems to me there would be some merit in this, at least for the benefit of legal scholarship.

      • Part of the answer is here. That is, court records are exempt from federal provisions on dealings with and access to Commonwealth records, absent regulations (after consultation with the Chief Justice) or direct agreement with the Chief Justice. Whether that is a good rule is another matter. According to Tanya Josev, in another paper in the current issue of the UNSWLJ, apart from what’s in the case file, ‘All other material prepared in chambers by judges and their staff – draft judgments, correspondence, memoranda from associates – are regarded as part of the private papers of the individual judge, to be dealt with as the judge sees fit upon retirement.’ (a stance she says was explained by the HCA’s ‘National Registry Manager’.)

        • Hi Arky and Jeremy — I can confirm (at least, with respect to current High Court and Federal Court practice) that draft judgments do not form part of the court file and are therefore not subject to the relevant record-keeping authorities. They are regarded as the part of the judge’s personal papers, and although judges are encouraged upon retirement to submit these papers to the NAA (this is in fact expressly articulated in the relevant Records Authority), this has not yet resulted in a flurry of such documents reaching the NAA. There is really no precedent for it in Australia: of the few archives of High Court judges submitted to the NAA and the NLA over the last century, it would be most unusual to find any form of draft judgment.

          As for the express attribution of authorship of joint judgments, I’d be interested to see how this would work. (Perhaps something like scientific journal practice, where the ‘lead author’ is listed first? But what of judges that only agree to join a judgment provided that certain phrases are shaped to their satisfaction – are they also listed as ‘subsequent’ authors of the judgment, or listed merely as those that agree with it?). For legal historians such as myself, express attribution would be helpful, but to be perfectly honest, access to draft joint judgments would be even better again (even if there is a lengthy embargo period imposed before accessing these documents). Draft judgments may well give historians some insight into how decisions were shaped by the judges in conference; in subsequent ‘negotiations’; and as part of the final editing process.

          • Thanks so much Tanya. Yes, the attribution of a single author of a joint judgment is controversial, whether done by computational linguistics (the paper does in some cases identify two possible authors, which might represent the work of two judges, or might just represent uncertainty) or by the judges themselves (though Kiefel CJ’s speeches suggest that the court takes measures to discourage requests for changes, including both an expectation that the first draft author will suppress her own personality and that later joiners will refrain from unnecessary reservations.) If the High Court was to follow other courts where author attribution is the norm, then other judges would probably have to indicate in their separate concurrence whether they agree completely, or ‘generally’, or with particular reservations. (The USSC judges have a system that facilitates concurrences in particular parts of a judgment, or doesn’t concur in particular footnotes, or the like.) I think that would assist judges, lawyers and academics, including historians, though I am sure you’re right that circulated drafts – and correspondence – would be better.

            Out of curiosity, have you pursued asking the federal government to pass regulations requiring the preservation of some court records? The legislation only requires consultation with the Chief Justice, not the CJ’s consent (though I imagine the letter of the law is hardly the only factor in making such regulations.)

  2. Thanks Jeremy. Approaching the government directly is not something I would necessarily pursue, because I’d prefer a project of encouraging judges, rather than compelling judges, to retain as many of their papers as they can. It’s not just draft judgments that are of interest to future scholars, but also research memoranda, bench books, internal communications and the like. (The ‘compulsion approach’, as it relates to a limited suite of documents specified in a Records Authority, would perhaps hinder the cultural shift I am trying to press for in my UNSWLJ article. It might also create a (undesired?) administrative burden on the court registry staff – although I am happy to be corrected on this). The High Court is already required to preserve certain records, as can be viewed here: http://www.naa.gov.au/naaresources/ra/2010-00663993.pdf

    I suspect that the particular Australian cultures of judicial modesty, ‘legalism’, and perhaps a concern about opening up the possibility of commentators writing about trivial curiosities of court life, inhibit judges in providing their personal papers to archival institutions generally. I think some of these concerns are justified, particularly as they might cast still-sitting members of the court into the fray. That would be very worrying – the US experience has shown that allowing public access to accounts/papers of recently retired clerks and judges can have deleterious effects for the remaining members of the court.

    What I hope for is that, with the appropriate reassurances (for instance, emphasising that judges have discretion about which papers – not just draft judgments – to provide to these institutions; ensuring that time embargoes are placed on certain material; or ensuring that certain material can only be accessed via a formal approval process), judges may see the provision of their papers to repositories as being a rather benign matter – at least in the short term…

  3. The Supreme Court of Canada has recently reaced an agreement with Library and Archives Canada for preserving cases and giving the public access to them (see here: https://scc-csc.lexum.com/scc-csc/news/en/item/5547/index.do). According to this agreement, case files, Collegial files and files of certain other categories, will be transferred to LAC 50 years after a file has been closed. This will provide information about Court deliberations.

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