News: Nettle J’s first judgment

Today, in his first judgment on the High Court, Nettle J explained why a federal incentive scheme for reducing greenhouse gas emissions was constitutional, a conclusion that most constitutional lawyers would have predicted. Even non-lawyers could have readily predicted what the remainder of the bench would say:

FRENCH CJ. I agree with the answers given by Nettle J to the questions posed in the Special Case for the reasons which his Honour gives.
HAYNE J. I agree with Nettle J.
KIEFEL J. I agree with Nettle J.
BELL J. I agree with Nettle J.
GAGELER J. I agree with Nettle J.
KEANE J. I agree with the judgment of Nettle J.

Queensland Nickel Pty Limited v Commonwealth of Australia [2015] HCA 12 is the latest in a tradition of sorts, where the High Court periodically forgoes its usual practice of presenting judgments where multiple judges agree (and have nothing further to add) as jointly authored by all of them, in favour of one judge presenting the judgment and the rest giving individual pro forma concurrences.

Although seemingly never officially acknowledged, the practice appears to be a way for the Court’s judges to mark the arrival of a new judge on the bench. Other examples of this phenomenon include first or early judgments of Keane J, Gageler J, Bell J, Gleeson CJ, Callinan J, Hayne J, Gummow J, and (much earlier) Deane J. The practice was also partially followed for Kiefel J, Crennan J, Heydon J and McHugh J, albeit with separate reasons in three of them and a dissent (by Kirby J) in the the case of Crennan J. Possible (but atypical) further instances include French CJ and Brennan J (for their eighteenth and nineteenth judgments) and Wilson J. I can find no sign of the tradition for Kirby J or (assuming the tradition was even in place at the time) Gaudron J, Toohey J, Dawson J and any judge before Wilson J.

While the Court’s practice on first or early judgements presumably bolsters collegiality, its non-official and non-uniform nature can sometimes invite unwelcome attention to goings on within the bench. After Bell J’s first judgment, Michael Pelly drew attention to the lack of a similar acknowledgment of French CJ’s first judgment, speculating that it was a signal that he was ‘isolated from his colleagues’. The tradition was belatedly followed in the next case to be heard after Pelly’s column was published, suggesting that the omission was simply an oversight. In my view, the practice has a further, more important downside: it potentially creates the impression that the Court’s judges perform their role differently in cases where the tradition is followed. For example, simply because it included Nettle J’s first judgment, readers of today’s decision (including, perhaps, the unsuccessful constitutional challenger) may well wonder whether the concurrences of six judges truly signal their agreement with Nettle J’s views on the law, or just their broader respect for their new colleague and the Court’s traditions.

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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.

2 thoughts on “News: Nettle J’s first judgment

  1. I agree that the Court’s practice of explicit agreement with the new justice bolsters collegiality (and might create problems). I’d like to offer another explanation for it by comparing this practice with the one in the Supreme Court of the United States. There it is customary for a new justice’s first assignment to be a unanimous opinion: eg Roberts CJ & Alito J (although in Sotomayor J’s case there was a concurring opinion by Thomas J, and in Kagan J’s case there was a dissenting opinion of Scalia J). Justices write opinions of the Court, and for the unanimous Court, all the time and are named as authors. Why insist on one as the beginning of SCOTUS career? In a Court with a reputation for ideological differences, a new justice is given a chance to prove, right from the start, that she can carry a Court, meaning that she can write for justices of all persuasions.
    High Court of Australia’s judgments are a symbol of collegiality and unity in the sense that joint reasons for the Court do not reveal their author (Gummow J offered some clues). The price of collegiality is that no justice can prove her ability to write “right” judgments, ie those that persuaded her colleagues to join her. Explicit agreement is an early sign that the new justice can do just that—write for all or most other justices. From now on, whenever she is listed as one of the authors of joint reasons (as Nettle J is in the other opinion released today), no one can rule her out as a possible writer.

  2. Pingback: Queensland Nickel Pty Ltd v Commonwealth | Opinions on High

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