By Jeremy Gans
‘What did you mean,’ he inquired slowly, ‘when you said we couldn’t punish you?’ ‘When, sir?’ ‘I’m asking the questions. You’re answering them.’
No-one cares about Re Culleton [No 2]  HCA 4. Not Rod Culleton, who is out of the Senate regardless, thanks to his bankruptcy problems. Not political types, because the One Nation candidate’s spot will just be taken by another one. Not anyone else, because no-one much likes the ex-Senator (or never Senator or whatever he is — was? — now) or cares who’s who in One Nation. And, it seems, not the High Court either, which last week phoned in a judgment in the case.
This indifference is a bit of a pity. Re Culleton [No 2] raises lots of issues that have nothing to do with Culleton and a number that have nothing to do with elections — and the High Court’s judgment fluffs several of them. Re Culleton [No 2] is a fine example of much that is wrong with Australia’s apex court these days.
‘I didn’t say you couldn’t punish me, sir.’ ‘When?’ asked the colonel. ‘When what, sir?’ ‘Now you’re asking me questions again.’
Every Australian’s right to be elected to Parliament (and to cast a valid vote for their preferred candidate) is limited by the following text:
44 Any person who:
(i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or
(ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or
(iii) is an undischarged bankrupt or insolvent; or
(iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or
(v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons;
shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.
Section 44 of the Constitution is well meant, but has mostly silly effects. Para (i) forces all dual citizens who want to stand for election to first give up their non-Australian citizenship forever. Para (iv) likely forces all public servants (including all teachers) to quit (and not just take leave from) their jobs if they just want to try to become an MP. Para (v) is basically incomprehensible (and might invalidate the election of many investors, depending on how the High Court rules in Re Day [No 2].) Para (iii), the best of a bad bunch, still makes it risky for anyone to combine running a business with being a politician (as both Rod Culleton and Bob Day exemplify.)
And then there’s para (ii), which keeps Parliament free of (some) criminals. While that certainly sounds like a good idea, Australia’s contemporary criminal law is a good deal broader than most people imagine. The drafters of s 44(ii) wanted to ban people convicted of a ‘felony or any infamous crime’, which in 1900 covered the sort of crimes that could see criminals executed or deprived of all of their property. But Samuel Griffiths, realising that criminal law terms can change or lose their meaning over time, suggested a different test: ‘any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’. Alas, those replacement words – especially ‘offence punishable’ – are now s 44(ii)’s biggest problem.
‘When didn’t you say we couldn’t punish you? Don’t you understand my question?’ ‘No, sir. I don’t understand.’ ‘You’ve just told us that. Now suppose you answer my question.’
We mainly know criminal ‘offences’ by their shorthand labels — murder, rape, theft, etc — but, under Australian law, offences actually consist of a complex (often very broad) definition and a maximum (often very high) penalty. Lots of offences cover an extremely wide range of behaviour, from absolutely trivial to extremely serious. Assault can be anything from an unwanted tap on the shoulder to a kick in the face. Drug possession can be anything from one banned pill to a truck full of contraband. Criminal damage can be anything from putting up a poster to burning down a house. Child pornography can be anything from a sext on your phone to a hard drive’s worth of horror. And so on. We tolerate these broad definitions (and the accompanying vast maximum penalties) because Australia’s criminal justice system is also full of discretion: prosecutors rarely chose to prosecute trivia and, if they do, judges rarely choose to punish it.
But there is no discretion in s 44(ii). If you have ever done anything trivial that happens to fall within the definition of a serious offence, then you can lose your right to stand for election (and your voters will lose their right to elect you) simply through bad timing, even though you never came within cooee of ‘imprisonment’. All it takes is for someone to charge you with an offence that bundles together whatever trivial thing you did with much more serious behaviour that merits a lengthy stay in prison. That is exactly what happened to Rod Culleton.
‘Now you’re telling us when you did say it. I’m asking you to tell us when you didn’t say it.’ Clevinger took a deep breath. ‘I always didn’t say you couldn’t punish me, sir.’
What was Culleton’s ‘offence’? The High Court’s reasons only said that it was ‘larceny’ (a common law crime that most people call ‘theft’) and that the charge was heard in a NSW Local Court, which could impose up to two years in prison for that crime. The Court doesn’t ever say what Culleton actually did. There are no publicly accessible reports of Culleton’s behaviour, but he claims — and no-one seems to dispute the broad details — that his offence was to take some tow truck keys in October 2014 while arguing with the truck’s driver. If that’s right, then what Culleton did was certainly wrong and probably ‘larceny’, but also quite trivial. Incidents like these are rarely prosecuted, but Culleton was. He says that he was arrested a year later while passing through Sydney Airport and that, six months after (on 2 March 2016) a Local Court in Armidale convicted him in his absence, before adjourning the matter for sentencing. Crucially, that remained the situation during the 2016 federal election period.
And that’s it. A barney, some discretionary decisions and some painfully unlucky timing was enough to bring Culleton within s 44(ii). In turn, that was enough to quash an otherwise perfectly valid election result (which, but for Culleton’s other troubles, would have stood for up to six years). Now, some readers probably think it’s a good thing to exclude people who grab truck keys from the nation’s Parliament. But, even then, s 44(ii) is still capricious, because there is absolutely no independent way to check whether anyone standing for Parliament is in this particular situation. While minor criminal matters are always heard in open court (so they can be witnessed by anyone who happens to be there), there’s no way anyone else can easily search for such events. Parties and electors must depend on the candidate himself or herself to reveal what happened, or run the risk of unwittingly campaigning for or voting for a person who cannot legally win. (The same is also true if an elected politician falls into this situation during his or her term in office.)
Whose fault is this? Like most flaws in the Constitution, we can blame the drafters — that would be Griffiths and the Lucinda crew — who in this instance wrote a overly broad and inflexible section into the Constitution that was poorly future-proofed. We can also blame the Australians who keep voting ‘no’ in referenda — that would be you and me, though actually just you — which makes the Constitution’s many drafting flaws (otherwise readily fixed; just repeal s 44) so hard to repair. Or we can blame the High Court for failing to read s 44(ii) so that it works less stupidly. For instance, why not read ‘punishable’ less literally, as at least requiring a plausible chance of serious punishment? Or reading it as not covering summary proceedings (rather than ‘indictable’ proceedings that cover serious matters and generate more public records.) To be clear, these creative interpretations aren’t the most faithful readings of the words of s 44. But such creativity is pretty standard for most countries’ constitutional courts and past High Courts have been fairly creative in reading ss 24, 51(xxxi), ch III and (for some of the Court’s judges) s 80. We don’t presently have that sort of bold apex court. But, as will be discussed next, Culleton invited some smaller fixes to s 44(ii) that would suit even a timid judge.
‘Yes, Yossarian. That’s right. Yossarian. Yossarian? Is that his name? Yossarian? What the hell kind of a name is Yossarian?’ Lieutenant Scheisskopf had the facts at his fingertips. ‘It’s Yossarian’s name, sir,’ he explained.
Now, you might be thinking: wasn’t all of this actually Culleton’s fault? After all, he could have avoided s 44(ii) entirely by just not taking the keys (duh), or not annoying a cop so much that he was charged with such trivia, or simply showing up at his hearing on 2 March last year. Had he done the latter, he could have been sentenced then and there, and that sentence (if any) would almost certainly have been done and dusted before the federal election. For what it’s worth, Culleton claims that he had a clash (actually — sigh — another criminal hearing in WA, where he maintains his innocence) and that he phoned the Armidale court about his problems and offered some sensible solutions. Nothing came of that, so I guess that he annoyed the court staff too. So, yes, Culleton owes his lack of success to nobody.
The thing is: the lower reaches of the criminal justice system are full of annoying people like Culleton. They are exactly the people who end up charged with trivia, and they are also the sort of people who courts get sick of and try in their absence. However, because no-one really wants to actually punish these folks, the criminal justice system provides plenty of processes to ensure a sane result in the end. Culleton says (and no-one disputes) that he took advantage of two of those mechanisms: he had the results of the 2 March proceeding annulled (almost certainly because of his earlier absence) and he convinced the judge at his replacement hearing to not ‘convict’ him of larceny (almost certainly because his offending was trivial.) These are common enough processes, but they can take a while. Culleton says that he put them in train in mid-March 2016, but the Armidale Local Court didn’t act on them until, respectively, on 7 August and 12 September 2016, both after the July election. Of course, few annoying people who end up in criminal proceedings have federal elections and the Constitution to worry about.
‘Didn’t you whisper to Yossarian that we couldn’t punish you?’ ‘Oh, no, sir. I whispered to him that you couldn’t find me guilty -‘ ‘I may be stupid,’ interrupted the colonel, ‘but the distinction escapes me.’
The central issue in Re Culleton [No 2] was whether these two protective mechanisms, despite only being resolved after the election, took Culleton outside of s 44(ii). The issue that got the most public attention was whether or not the 7 August annulment meant that the 2 March conviction no longer counted under s 44(ii). This sort of technical question is a recurring legal puzzle in many contexts — contracts, marriages, administrative law, precedent — and courts usually have a lot of wiggle room to find the best and fairest outcome. However, in Culleton’s case, the High Court said it was bound entirely by the nuances of NSW’s criminal procedure statutes. Those provisions were hardly crystal clear — Justin Gleeson SC thought they favoured annulments being retrospective, Nettle J thought they favoured being prospectively retrospective, while the majority thought they favoured being only prospective.
Anyway, the majority’s view meant that Culleton’s larceny conviction remained in place from 2 March to 7 August and was subject to s 44(ii) during that time. The majority’s reasoning applies well beyond constitutional and election settings and captures other uses of criminal convictions as a way of determining whether someone is disqualified from public office, or a statutory licence, or working with children, or whatever (at least in NSW, but perhaps beyond). And that means that people may be prospectively disqualified or disadvantaged because of annulled convictions in plenty of situations.
What makes the majority’s stance especially strange is that the situation is different if, instead of having your conviction annulled, you simply appeal it. In 1935, the High Court heard the case of a man who was convicted of larceny (like Culleton) and was deemed by a statute (in similar terms to the original draft of s 44) to have ‘vacated his office’ as a result. Unlike Culleton, he appealed against his conviction and had it quashed when the appeal succeeded. The High Court unanimously and firmly held that the effect of the quashing was that the man was never convicted at all and was entitled to his back pay:
The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio. “The judgment reversed is the same as no judgment”.
In last Friday’s decision, the High Court said that the earlier ruling was correct but only applied to appeals, not annulments. So, if Culleton had simply appealed his conviction — typically, a much slower, albeit more common, process — instead of getting it annulled, he might not have been subject s 44(ii)!
‘Now, where were we? Read me back the last line.’ ‘”Read me back the last line,”‘ read back the corporal who could take shorthand. ‘Not my last line, stupid!’ the colonel shouted. ‘Somebody else’s.’ ‘”Read me back the last line,”‘ read back the corporal.
Less public attention has been given to Culleton’s other, more complex argument that particular features of his case meant that he was never ‘under sentence, or subject to be sentenced’ for a forbidden offence. These words in s 44(ii) are designed to restrict any disqualification to particular periods, ensuring that even people who commit serious crimes can still stand for parliament after their punishment is done. Culleton relied on past authoritative statements that simply assumed that s 44(ii) only applied to people while they are ‘serving’ a sentence (something Culleton has never done). The High Court ruled that those authorities ignored the words ‘subject to be sentenced’, which it said were designed to catch people like Culleton who weren’t yet sentenced, but theoretically could be. They also rejected Culleton’s argument that, because NSW law bars sentencing an ‘absent offender’ to prison and various other serious punishments, he was never ‘subject to be sentenced’. The High Court held that the term ‘absent offender’ only applied at the time a person was actually sentenced, not when they were awaiting sentence. (A sounder argument would have been that absence only bars serious punishments, but left Culleton ‘subject to be sentenced’ to minor punishments.)
The irony of all this technical nitpicking is that s 44(ii) is expressly built on a technical oddity. It only applies to a person who was ‘convicted’ of an offence (as Culleton was on 2 March) rather than merely found guilty (as Culleton was on 12 September). Under modern sentencing practice, ‘conviction’ of an offence is part of (and, for minor offenders, sometimes the entire) punishment for an offence. This means that, typically, trivial offenders simply cannot be caught by s 44(ii)’s ‘subject to be sentenced’ language because the entire punishment happens in an instance. Had Culleton’s judge on 2 March either opted merely to find Culleton guilty in his absence (and to defer his conviction and any other sentencing until later) or to convict Culleton in his absence and then end the sentencing process entirely, then Culleton would never have been caught by s 44(ii). Culleton’s fate was sealed because his judge, for whatever reason, opted to partially punish Culleton in his absence (by convicting him) and then adjourn the matter without finalising his (likely non-existent) sentence.
Culleton tried to convince the High Court that his fate should not hinge on such pointless differences in form, by citing a provision of the federal election statute that says the Court of Disputed Returns ‘shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities’. But the High Court held that that rule only bars meaningless technicalities in the High Court’s own processes, not anyone else’s.
‘Popinjay, is your father a millionaire, or a member of the Senate?’ ‘No, sir.’ ‘Then you’re up shit creek, Popinjay, without a paddle.’
In case you have any doubt about the soundness of the majority’s judgment, consider Culleton’s final argument: that the behaviour of the Local Court in not adjourning his trial and entering a conviction meant that his conviction was a nullity (and hence outside of s 44(ii) due to ‘procedural unfairness or fraud’. The majority had two responses to that. First, ‘[t]he factual basis for such an argument was not established.’ As it happens, that’s true, but that’s because both French CJ (when Culleton was unrepresented) and later the Full Court refused Culleton’s request for an adjournment to give him time to subpoena evidence about what happened on 2 March 2016, including (presumably) his conversations with the Local Court’s staff. In short, the Court didn’t give him a fair chance to establish that he was treated unfairly.
Second, the majority held that, regardless, Culleton couldn’t argue that the 2 March conviction was unfair and hence a nullity because (at ):
these possibilities are not consistent with the circumstance that Senator Culleton sought and obtained relief under the Appeal and Review Act on the basis that the conviction of 2 March 2016 was truly a conviction.
In other words, asking for (and having) his conviction annulled (almost certainly on fairness grounds) implied that the conviction was ‘true’ and, hence, barred him from later saying that it was an unfair nullity!
And that (contra Anne-Marie) is what’s called a Catch 22:
“You mean there’s a catch?” “Sure there’s a catch,” Doc Daneeka replied. “Catch-22. Anyone who wants to get out of combat duty isn’t really crazy.” There was only one catch and that was Catch-22, which specified that a concern for one’s own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn’t, but if he was sane, he had to fly them. If he flew them, he was crazy and didn’t have to; but if he didn’t want to, he was sane and had to.
Re Culleton [No 2]‘s readers should ‘let out a respectful whistle‘.
‘I said to him, sir, that you couldn’t find me guilty of the offense with which I am charged and still be faithful to the cause of…’ ‘Of what? You’re mumbling.’ ‘Stop mumbling.’ ‘Yes, sir.’ ‘And mumble “sir” when you do.’
Now, while I think that Re Culleton [No 2] was probably wrongly decided and certainly has some bad future consequences, that isn’t the reason I’m writing about it on Opinions on High. Rather, I think a minor case like this — well, a major minor one — is a good opportunity to ponder a major question about the High Court: why do smart people write bad judgments?
This question has been on my mind recently because I’ve been reading the brilliant judgments of United States Supreme Court nominee Neil Gorsuch. Even though I doubt I agree with much of Gorsuch J’s politics, I am sure, after reading his judgments, that he would never write a judgment about a crime that never mentions the facts of that crime, or write a judgment that blandly gives annulments a totally different effect to appeals, or blame someone who he denied an adjournment to prove facts for failing to establish those facts, or set out a literal Catch-22 in a constitutional decision. I’m sure of all that because Gorsuch J makes it clear that he owns everything he says, by writing in an accessible and highly personal style (a style that will get him smoothly onto the Supreme Court bench despite who nominated him.)
What’s the connection to the majority judgment in Re Culleton [No 2]? This:
Looking back at earlier reports of cases in the High Court, one may be struck by the number of individual judgments written. In more recent times, by which I mean the last few decades, one sees more joint judgments. This may simply reflect an increase in the volume of work; it may also indicate a shift in attitude.
That’s the current Chief Justice, Susan Kiefel, in a speech she gave in 2013. I agree with her that there seem to be a lot more joint judgments this past decade. But the change does not reflect ‘an increase in the volume of work’; the High Court does significantly less work this century then it did in the past.
Rather, as she says, the change is likely one of ‘attitude’. She spells out her own attitude to judgment writing later in the speech, stating that:
- ‘Most judges would be more interested in substance than style.’ (She criticises Denning LJ).
- ‘Judges usually avoid humour. Litigants, understandably, do not find judgments
- ‘A judge also has to be careful of criticising other judges. Judges on the receiving end of such treatment are quite capable of putting an erring colleague in his or her place.’
On her view, Gorsuch J (who follows none of this advice) writes bad judgments. It’s certainly true that the High Court’s primary contemporary vehicle for judgments — joint judgments — are invariably style-free, humourless and uncritical. Certainly, no High Court joint judgment would ever include a grammar diagram or reference the Hunger Games.
‘Yes, sir,’ mumbled Clevinger. ‘Of justice, sir. That you couldn’t find —’ ‘Justice?’ The colonel was astounded. ‘What is justice?’ ‘Justice, sir —’ ‘That’s not what justice is,’ the colonel jeered, and began pounding the table again with his big fat hand.
This, according to Kiefel CJ, is how the High Court writes its joint judgments:
Often one judge of the panel which has heard the appeal will be asked to write a first draft and to circulate it to the other judges, who will then consider whether they can agree with it or not. … In the High Court, this is determined posthearing. It usually only occurs when there is a level of consensus and therefore the possibility that others will agree with the view expressed, although sometimes when the Justices are undecided, one will volunteer to write a first draft in any event. A Justice might volunteer to do so because of his or her particular interest in the issues or it may lie within an area of special experience. Or it may simply be that it is a Justice’s turn.
She says that this process is necessary because ‘it is not possible for appellate judges to write a comprehensive judgment in a timely way on every case they hear.’ But in the two years before Kiefel CJ’s speech, Heydon J put the lie to this claim, at least in the High Court, when he wrote a separate judgment in every single case he sat on. And, anyway, why did these timing bench marks become the rule in the High Court? I suspect that the High Court has simply adopted the norms of the (much busier) Federal Court, the source of so many High Court judges these days (and, now, two Chiefs.)
I had once assumed that the High Court’s joint judgments were genuine collaborative projects, but Kiefel CJ reveals otherwise:
It is rarely correct to say that what appears as a joint judgment was co-written by the judges ascribing their names to it. It is, in my experience, quite rare to have an appellate judgment written by more than one judge, not the least because it is difficult in a practical sense to do so. Very occasionally, a judgment will be able to be divided into discrete sections, but even then substantial editorial adjustments are necessary so that the judgment appears homogenous. It does happen that a concurring judge will suggest an addition or amendment. There is no obligation to agree to any changes. Some joint judgments in the past have clearly suffered from too much input and the clarity of the judgment has thereby been compromised.
The problem is that the joint judgments also aren’t what the (true) author would write on his or her own:
In the High Court when a Justice signifies concurrence, he or she is joined in the judgment (by which I mean his or her name is added to it) if that is so desired. When a judgment is published, it will not be apparent who the author is. It is partly for this reason that Justices will make a conscious effort not to intrude their own personality into their reasons when they are writing a first draft for the other members of the Court to consider.
So, writers in High Court majorities must keep even their draft judgments ‘personality’-free and other members of the majority should avoid ‘too much input’. It sounds to me like working on an anonymous committee.
And the results of this process certainly look like the work of a committee. Every High Court follower knows the distinctive writing styles of Isaacs J, Dixon J, Evatt J, Barwick CJ, Mason J, Murphy J, Deane J, Gaudron J, McHugh J, Kirby J, Heydon J and so on. But could anyone identify the writing style of Kiefel J, Keane J, Bell J or Gageler J? Indeed, High Court judges who wrote distinctively in their previous roles seem to lose that distinctiveness in the current apex court, even when they write separately, for example Nettle J in the current court. I’ve long had the sense from reading High Court judgments that the current judges simply don’t enjoy their work. Unless you’re a ‘great dissenter’, life on the apex court sounds incredibly dreary. Contemporary High Court judges are born great, rise to great heights but seem to have mediocrity thrust upon them.
‘I’ll tell you what justice is. Justice is a knee in the gut from the floor on the chin at night sneaky with a knife brought up down on the magazine of a battleship sandbagged underhanded in the dark without a word of warning. Garroting. That’s what justice is when we’ve all got to be tough enough and rough enough to fight Billy Petrolle. From the hip. Get it?’ ‘No, sir.’ ‘Don’t sir me!’
My concern isn’t with High Court judges’ career happiness. Rather, it’s that I fear that this lack of personality can translate into a lack of justice. To quote another passage from Heller’s masterpiece:
It was miraculous. It was almost no trick at all, he saw, to turn vice into virtue and slander into truth, impotence into abstinence, arrogance into humility, plunder into philanthropy, thievery into honor, blasphemy into wisdom, brutality into patriotism, and sadism into justice. Anybody could do it; it required no brains at all. It merely required no character.
To put it shortly, if no-one truly writes a judgement, then there’s a lot less chance that the judgment will truly be right. (Justice Gageler spoke about this — and its impact in multi-member courts — at length in 2013, though maybe he’s since changed his mind.)
Of course, this is all guesswork. Apart from Kiefel CJ’s speech, the High Court’s judgment writing process happens in private and everyone involved is bound by strict secrecy. Maybe, as is sometimes suggested, life as a High Court judge is a non-stop intellectual frenzy that just doesn’t show (at least to me) in the Court’s outputs. And maybe Kiefel CJ is right that the joint judgment process carries other advantages and that the disadvantages are reduced in practice:
Most appellate judges in Australia would, I think, express a preference for a joint judgment where it is possible, when judges are in agreement, unless a judge has a different approach to reasoning to the same conclusion and wishes to express it or has something that he or she wishes to add. One English judge has gone so far as to suggest that it is a vanity to write when there is nothing to be added. Of course if a judge cannot agree, he or she must write in dissent. No judge would agree unless able to do so completely.
Views have differed over the years about whether joint judgments are to be preferred. One of Australia’s most distinguished jurists and a prolific judgment writer, Sir Owen Dixon, once told a colleague that he usually regretted agreeing with another’s judgment; nonetheless, he continued to do so on occasion. His colleague later remarked that ‘the advantage of certainty in the law was aided by his doing so’.
The need for certainty is particularly important in areas such as criminal law. Appellate judges are conscious of the position of a trial judge, who is not assisted by a multiplicity of judgments, all with some qualification or addition. And in some controversial cases, the view is taken that it is preferable that the court speak with one voice, if it can.
I was never one to decry the Court’s multiple judgments (though many of them could have been improved by cross-referencing), but I know that I’m in the minority on that view.
But there’s no need to discard joint judgments to resolve the problem of judgment ownership that I raise here. Rather, I think one small change will make a big difference:
In the High Court, we do not currently adopt a system such as that in the United Kingdom (and in Hong Kong) where one leading judgment may be written with the other members of the court publishing separate concurrences, even if they say no more than ‘I agree with Justice X.’ By this means, the author is always evident.
I’m heartened by that word ‘currently’. While the High Court’s practice (which also differs from that in the US and Canada) is well known, there has (to my knowledge) never been any justification provided for it. If the joint judgments were genuinely collaborative, then identifying a single author would be capricious and pointless. But, if they aren’t, then why the secrecy?
In my view, if the writer of a joint judgment is identified (and the judges know that he or she will be identified), then three good things would follow. First, I believe that the writer would write a much better — and a more just — judgment, because his or her name would be attached to it; I can’t believe that any of Kiefel, Bell, Gageler or Keane would ever have let that ‘Catch 22’ passage stay if theirs was the sole name on the judgment. Second, other judges would find it less worrisome to join a judgment that had its own individual ‘personality’ if they were not labelled as the judgment’s ‘co-author’. And, finally, other judges would also be more likely to express (however briefly) how their own personal takes differ from the main judge, freed of the fear of wrecking the principal judgment with ‘too much input’.
And that would give everyone else a judgment that was actually worth reading and worth criticising:
Catch-22 did not exist, he was positive of that, but it made no difference. What did matter was that everyone thought it existed, and that was much worse, for there was no object or text to ridicule or refute, to accuse, criticize, attack, amend, hate, revile, spit at, rip to shreds, trample upon or burn up.
So, how about it? Why not tell us which of Kiefel, Bell, Keane or Gageler JJ was responsible for Re Culleton [No 2]? As Leieutenant Shiesskopf promised Clevnger, I swear I won’t punish you.
Clevinger was guilty, of course, or he would not have been accused, and since the only way to prove it was to find him guilty, it was their patriotic duty to do so. He was sentenced to walk fifty-seven punishment tours. Popinjay was locked up to be taught a lesson… A punishment tour for Clevinger was fifty minutes of a weekend hour spent pacing back and forth before the provost marshal’s building with a ton of an unloaded rifle on his shoulder. It was all very confusing to Clevinger.