Last week, the High Court published two unanimous judgments and announced a third, bringing its total of unanimous decisions so far this year to 15, out of 17 to date. At this early stage, the Court is tracking ahead of its past rates of unanimous assent in orders.* On my count of the last five years (since Gummow and Heydon JJ left the bench and Gageler and Keane JJ joined), the Court’s judges unanimously asesnted to the court’s orders in 75% (2013), 76% (2014), 81% (2015), 76% (2016) and 67% (2017) of three-or-more judge cases.This average unanimity rate of 76% over the past five years is – according to data compiled and generously supplied to me by regular blog commenter Matan Goldblatt – well ahead of earlier multi-year periods where unanimous orders made up 67% (2007-2012), 54% (2003-2007) and 61% (1998-2003) of High Court decisions. The backdrop (and possible explanation) of the current institutional unanimity rate is each judge’s personal rate of assenting to the Court’s order. From 2013, my count of those rates is: French CJ: 95.5%; Hayne J: 91.9%; Crennan J: 94.8%; Kiefel J/CJ: 97.7%; Bell J: 96.7%; Gageler J: 87.0%; Keane J: 97.1%; Nettle J: 91.1%; Gordon J: 90.0%; and Edelman J: 88.9%.
These figures show that the current court is characterised, not just by its lack of ‘Great Dissenters’ – Gageler J’s outlier of 87% is barely comparable to the likes of Kirby J (around 60%, dropping to 52% in 2006) and Heydon J (55% in his final year) – but perhaps especially by its run of ‘Great Assenters’ who dissent in fewer than 1 in 20 cases (including, in Kiefel J/CJ’s case, fewer than 1 in 40!) The rates of top three assenters of the current court (Kiefel J/CJ: 97.7%; Keane J: 97.1% and Bell J: 96.7%) all exceed those of the previous decade’s Great Assenter (Gummow J: 96.5%, based on Lynch et al’s annual statistics). Perhaps more so than dissenters, assenters are a product of who else is on the bench. I’ve calculated pairwise rates of agreements in orders (whether in assent or dissent) for the current seven judges as follows:
Unsurprisingly, the three highest rates of pairwise agreements (Kiefel & Keane JJ: 97%; Bell & Keane JJ: 94%; Kiefel & Bell JJ: 93.2%) are among the current court’s three Great Assenters. In the 108 cases to date where the trio of Kiefel, Bell and Keane JJ sat together, they agreed in orders 88.8% of the time.
Why do pairs, trios or benches of judges routinely agree? Possible explanations include coincidence, the uncontroversial nature of cases they decide, the similar wisdom of the agreeing judges (great minds think alike), the shared legal approach of the agreeing judges (similar minds think alike) or what former High Court judge Dyson Heydon would term a ‘lack of independence‘, whether due to dominant personalities, excessive collegiality, a desire to present a united front, judicial politics or a division of labour. Only the Court’s judges (if anyone) know the explanation in each instance. Outside the Court, we can only look for patterns that hint one way or another. In that vein, as I compiled my own data, I happened to notice that the pairwise agreement in orders of Kiefel and Bell J was higher from 2014 onwards (97.20%, with just four disagreements in four years) than in 2013 (92.5%, with three disagreements in a single year). To explore further, I counted and charted the annual rates of pairwise agreements of these two judges since they first sat together in 2009:
Consistently with my hunch, this picture suggests a shift in Kiefel and Bell JJ’s pairwise agreement rate around 2013, switching from around three yearly disagreements on orders to just one (the same rate as Kiefel and Keane JJ throughout their time on the bench.) By contrast, perhaps the most famous of recent judicial pairs, Gummow and Hayne JJ, maintained their rate of agreement in orders of 95% (give or take half a percent) virtually unchanged from 1998 through to Gummow J’s retirement in 2012 (again using the data collected by Matan Goldblatt.) The cause of any possible shift agreements between Kiefel and Bell JJ in 2013 – the year Keane J joined the bench – is unclear.