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.