Last week, UNSW’s Gilbert and Tobin Centre for Public Law held a workshop on Great Australian Dissents. The judgments nominated by the attendees were tweeted during the proceedings and included thirteen High Court dissents from 1915 to 2013:
- New South Wales v Commonwealth  HCA 17; (1915) 20 CLR 54 (Barton J)
- R v Federal Court of Bankruptcy  HCA 10; (1938) 59 CLR 556 (Dixon & Evatt JJ)
- Chester v Waverley Municipal Council  HCA 25; (1939) 62 CLR 1 (Evatt J)
- Re Richard Foreman & Sons Pty Ltd; Uther v Federal Commissioner of Taxation  HCA 45; (1947) 74 CLR 508 (Dixon J)
- Australian Communist Party v Commonwealth  HCA 5; (1951) 83 CLR 1 (Latham CJ)
- Victoria v Commonwealth  HCA 39; (1975) 134 CLR 81 (Mason J)
- Australian Conservation Foundation v Commonwealth  HCA 53; (1980) 146 CLR 493 (Murphy J)
- Hospital Products Ltd v United States Surgical Corporation  HCA 64; (1984) 156 CLR 41 (Mason J)
- Chamberlain v R (No 2)  HCA 7; (1984) 153 CLR 521 (Deane J)
- Leeth v R  HCA 67; (1992) 67 ALJR 167 (Deane & Toohey JJ)
- Langer v Commonwealth  HCA 43; (1996) 186 CLR 302 (Dawson J)
- Al-Kateb v Godwin  HCA 37; 219 CLR 562 (Gleeson CJ & Kirby J)
- Monis v The Queen  HCA 4 (Heydon J)
Although my own nomination was Deane J’s anguished dissent in the Chamberlain case, my workshop paper identified a forgotten judgment from exactly one hundred years ago as arguably the greatest dissenting judgment of all time.
On 15 December 1914, the High Court dismissed an application for special leave to appeal in Eather v R, a child sexual abuse case, with five judges in passing adopting the Privy Council’s stance against hearing criminal appeals except on matters of fundamental principle as applicable to the High Court. Justice Isaacs issued a lengthy dissent, allowing the appeal on the merits and rejecting the Privy Council model:
The more I have considered this matter, the more I am convinced—until judicially bound to consider otherwise—that Parliament has in effect said to the Court, as the highest local Australian Court, this:—”In criminal cases we draw no line, consider each case as it comes up on its merits, and say whether broad justice or the due interpretation of the criminal law makes revision proper or not. If it does, revise the decision; if not, refuse to do so.”
This strident dissent prompted an immediate rejection from Griffiths CJ. But, astonishingly, exactly six months later (and a hundred years ago today), the Chief Justice made a ‘statement from the Bench’ (reported as Re Eather v R) announcing that the ‘case cannot… for the future be regarded as an authority’ and instead holding, on behalf of six judges, that the High Court has an ‘unfettered discretion to grant or refuse special leave in any case’.
Justice Fullagar later observed that ‘the dissenting judgment of Isaacs J. in that case may be said to have prevailed almost from the outset’. However, this dissent’s claim to greatness rests largely on a single measure: the (surely unprecedented) speed with which it became the accepted view. As last week’s workshop explored, other forms of greatness are much more elusive and the same fickle moods that can elevate a dissent can also later sideline it. Indeed, this was the fate of Isaac J’s dissent in Eather. Statutory and procedural changes have led to it being wholly forgotten in name and substance a century later, with the modern Court now unashamedly mimicking the Privy Council’s old refrain that it is not a court of criminal appeal.