Today, the High Court issued its final judgment for 2015, number 53 in the media neutral citation list, one more than last year. Looking back over the Court’s judgments published on Austlii, these numbers are amongst the Court’s lowest. Out of the Court’s 113 years, there have been only fifteen with fewer than 53 (media neutral citation) judgments: 1903 (3), 1926 (52), 1928 (51), 1929 (46), 1930 (52), 1939 (41), 1940 (46), 1941 (43), 1942 (40), 1943 (50), 1944 (42), 1948 (50), 1983 (47), 2010 (49) and 2014 (52). The majority of these have ready explanations – the Court’s truncated first year and the depression and war years – that the more recent years lack.
But such raw counts can easily mislead, as not all published judgments are equal. For example, until the 1980s, the Court often sat benches of five for special leave applications and issued lengthy judgments even when the applications were refused, whereas now such decisions are brief and rarely published as formal judgments. The Court’s own statistics now distinguish between special leave decisions and other full court decisions: in the last 10 financial years, the latter numbered (in chronological order): 105, 76, 77, 65, 75, 58, 71, 77, 60 and 63. The Court’s most recent annual report states that ‘the numbers of Full Court hearings and decisions in 2014-15 were comparable with averages for both during the past 10 years.’ Very similar words appear in the preceding 8 annual reports.
However, the Court’s annual reports count decisions, rather than judgments (and seemingly including some unpublished or very brief rulings on such matters as removal applications.) By contrast, the numbers of published (media neutral citation) judgments in the past decade are (again, in chronological order): 63, 61, 59, 53, 49, 54, 62, 60, 52 and 53. Even these numbers reflect variable practices in the High Court’s publications, notably the increased inclusion of single judge and cost rulings in the list (such as this week’s two new ‘judgments’, nos 52 and 53.) For example, the past two years include eight single judge judgments and three costs judgments, whereas there were no such judgments at all in 2006, 2007 or 2010 (the year where there were ‘only’ 49 judgments.) Excluding such judgments, the relevant numbers are 63, 61, 54, 52, 49, 49, 60, 57, 48 and 48. No matter how you count things, the past two years seem to be some of the leanest in terms of substantive judgments from Australia’s apex court.
Interesting numbers. Matthew Groves and Russell Smyth have previously commented on the increasing lengths of High Court judgments between 1903 and 2001: http://www.austlii.edu.au/au/journals/FedLRev/2004/11.html#Heading35
One suspects that with the increasing emphasis on substantial written argument judgment length would also have increased from 2002-2015. If correct, this might provide another reason why judgments over the last decade have been low in number.
Yes, judgment length is certainly a different thing to measure. My impression is that average judgment length has dropped in recent years – perhaps due to more unanimous decisions and also the Court’s decreased willingness to resolve issues unnecessarily – but I certainly haven’t checked.
The natural question is whether this reflects:
1. A decrease in the number of cases brought in the High Court (whether via special leave application or in the Court’s own jurisdiction);
2. A decrease in the rate at which appeals are granted special leave; or
3. A decreate in the rate at which judgments are written (which would increase the backlog of cases to be decided).
Or some of each.
For what it’s worth, I would think it’s either 1, 2 or both. High Court cases don’t seem to be particularly backing up. But the statistics would be enlightening. Less cases coming to the High Court could have many causes if that’s what it is… a steady reduction in the rate of special leaves being granted, on the other hand, would be newsworthy as it would suggest the standard to be granted special leave was getting tougher.
On 1, the HCA’s annual reports list numbers of special leave applications and constitutional writs filed over the past 10 years. See http://www.hcourt.gov.au/assets/corporate/annual-reports/hca-annual-report-2014-15.pdf at p23. The data is complicated by mostly hopeless immigration and self-represented matters; excluding those, the rate of applications looks pretty steady over the past decade.
On 2, the HCA’s annual reports also report SL grants (albeit inconveniently only for the most recent two years) but, putting them together gives: 2014/5: 52; 2013/4: 54; 2012/3: 44; 2011/2: 59; 2011: 82; 2010: 62; 2008/9: 70; 2007/8: 61; 2006/7: 80; 2005/6: 58. So, a lot of variability, but generally fewer grants in recent years compared to eight of so years ago. As you say, this may suggest tougher granting standards. But (and perhaps this is what the HCA judges would say), it may simply suggest differences in the cases where applications are made (for example, the lower courts are making fewer reversible errors.) (I haven’t looked at rates of grants of other relevant decisions, e.g. removal applications.)
On 3, I agree that this is unlikely. Judgements seem to be written quite quickly these days (for better or worse.) The HCA annual reports show 63% and 70% of appeals being finalised in less than 6 months in the past two years, compared to 53% and 27% seven and eight years ago.