News: The High Court splits evenly again

Today, the High Court issued its judgment in the last of three six-judge decisions heard in the months before Crennan J’s retirement. As I discussed in this piece in The ConversatIon last December, even-numbered benches are a sporadic, but persistent, by-product of the Court’s composition:

This same problem arises each and every time a High Court judge approaches retirement. Indeed, it’s happening right now. The Court is scheduled to hear six judge cases in important matters through to June next year because two High Court judges are retiring in succession. Any one of them could be another tie. Cases already at risk of being resolved, perhaps irreversibly, by a tie breaker include regulatory action over Sydney’s radio hoax tragedy, a native title claim over a World War Two training ground, and the aftermath of the collapsed tourism, property and finance group, Octaviar bankruptcy.

The radio hoax and bankruptcy cases were resolved unanimously. However, as I feared last year, today’s native title decision was a tie, the Court’s first since 2013’s Monis v R (which failed to resolve the constitutionality of the federal ban on offensive postal communications.) In this case, three judges (Hayne J, Kiefel J and Bell J) held that a temporary military occupation of the Bar Barrum people’s land during World War Two permanently extinguished their native title, while the remaining three (French CJ, Keane J and Gageler J) held that it didn’t. Under s23 of the Judiciary Act 1903, this meant that Queensland’s appeal against a 2-1 decision of the Federal Court in favour of the Bar Barrum people was dismissed and they won the case.

It also means that the central legal issue the High Court was asked to resolve – whether the government’s temporary but exclusive occupation of land permanently extinguishes native title – has not been finally resolved. While the Federal Court’s ruling still binds lower courts for now, anyone fighting a similar native claim can appeal the exact same point to the High Court to be argued afresh, unhindered by the doctrine of precedent. For instance, Queensland (which lost today) can return to the High Court to attempt to overturn a recent native title determination in favour of the Butchulla people (who had failed to have their similar dispute joined to the Bar Barrum litigation), in the hope that new judges Nettle J and Gordon J will agree with Hayne (soon leave the Court), Kiefel and Bell JJ. Indeed, according to the North Queensland Land Council, the federal military regulation at issue in today’s case was applied to some 13,500 pieces of land, potentially affecting ‘widespread’ native title claims. The costs of today’s split ruling therefore include not only a potential repeat of March’s one-and-a-half day hearing, but also possible delays and disputes in any number of native title matters in the meantime.

As I have argued previously, even-numbered benches (and therefore the risk of evenly split decisions) that are due to pending retirements can be avoided fairly readily. One option would have been to appoint the incoming judge (Nettle J, in this case) two months early. A much simpler and cheaper approach would have been for the Court  to order a rehearing of this appeal under a seven-judge bench, once it became apparent that a split decision was possible.  Indeed, in Canada (which has a different mechanism in place to avoid even benches in retirement cases, but where a constitutional dispute left the apex court undermanned for months), the Supreme Court made just such an order last year in a case concerning treatment of mentally ill defendants, avoiding even the cost of a rehearing when the parties consented to the new judge relying on the transcript of the earlier proceeding. This approach carries the cost of a few months delay in the proceeding before the Court, but the benefit of preventing avoidable further litigation.

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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.

4 thoughts on “News: The High Court splits evenly again

  1. One wonders why they don’t just seat a 5-judge panel in situations where they can’t seat 7. Admittedly that has its unsatisfactory features in close cases like this one, but as long as the odd-judge-out is chosen fairly (i.e. chosen randomly from among the non-chief justices) it is less unsatisfactory than risking a 3-3.

  2. Forming a five-judge bench is certainly an easy fix. Indeed, I’ve speculated that that may have been the motivation for forming a five-judge bench in Cunneen v ICAC, despite its importance, assuming (as some claim) that Bell J recused herself.

    But that solution defeats the whole purpose of forming seven-judge benches for important (or constitutional) cases. Hence my preference for a permanent solution (‘early’ appointment of the replacement judge, assuming the Canadian ‘delayed’ retirement option isn’t open here) or an ad hoc solution (rehearing cases with a seven-judge bench if the judges are evenly split.) While none of these approaches is perfect, they all seem better than the current practice.

  3. I thinking re-forming the bench and re-arguing the matter would be an unsatisfactory outcome because the parties would realise the position and spend the entire time directing their arguments to a single justice. It could become unseemly.

    However, I agree that such benches ought to be avoided either by forming 5 judge benches in those circumstances or deferring cases which would ordinarily warrant 7 judges until the new member of the Court arrives.

    The staggered retirements of Crennan J and Hayne J, whilst reported as being to prevent the Court being down 2 justices in the months leading up to their otherwise virtually simultaneous retirements, has actually prolonged the period of time in which 6 justice benches are a possibility.

    Perhaps it would have been better if Crennan J had remained on the Court until compulsory retirement and the Court could simply have deferred all 7 judge cases for 3 months prior to their retirements.

  4. You are right that a re-formed bench might be seen as a one-judge show. But that’s life in many high profile matters in national courts (notably the USSC, but the HCA isn’t immune.) Unseemly? I guess so, but so what? Even splits are pretty rare things. I think the unsatisfactoriness is a good deal less than the inconvenience of having to defer every six-judge matter.

    I agree completely that the staggered retirements of Crennan J and Hayne J have caused far more problems than they (supposedly) solved. The problem in the native title case would not have arisen if either Crennan J had retired at 70, or if the Court had been willing to let her participate in the hearing in November (which would have required the Court to reach its decision by February.) The ideal solution remains the Canadian one of allowing judges to participate in post-retirement decisions. While that solution (perhaps) isn’t available for 70 year-old retirees, it would have been perfect for Crennan J.

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