scholarly journals The High Court on Constitutional Law: The 2018 Statistics

2019 ◽  
Vol 42 (4) ◽  
Author(s):  
Andrew Lynch ◽  
George Williams
Keyword(s):  
Decision Making ◽  
Constitutional Law ◽  
High Court ◽  
Chief Justice

This article presents data on the High Court’s decision-making in 2018, examining institutional and individual levels of unanimity, concurrence and dissent. It does so in the context of the elevation of a new Chief Justice to lead the Court and the appointment of a new member to the bench at the commencement of the year. Recent public statements on the Court’s decision-making practices by the new Chief Justice and others inform discussion of the statistics. This article is the latest instalment in a series of annual studies conducted by the authors since 2003.

scholarly journals The High Court on Constitutional Law: The 2019 Statistics

2020 ◽  
Author(s):  
Andrew Lynch
Keyword(s):  
Decision Making ◽  
High Frequency ◽  
Constitutional Law ◽  
Distinctive Features ◽  
High Court ◽  
Chief Justice

This article presents data on the High Court’s decision-making in 2019, examining institutional and individual levels of unanimity, concurrence and dissent. It points out distinctive features of those decisions – noting particularly the high frequency of both seven- member benches and the number of cases decided by concurrence over 2019. The latter suggests the possibility of greater judicial individualism re-emerging on the Court despite the clear endorsement of the ‘collegiate approach’ by Chief Justice Kiefel and its practice in the first two years of her tenure as the Chief Justice. This article is the latest instalment in a series of annual studies conducted by the authors since 2003.

scholarly journals The High Court on Constitutional Law: The 2017 Statistics

2018 ◽  
Vol 41 (4) ◽  
Author(s):  
Andrew Lynch ◽  
George Williams
Keyword(s):  
Decision Making ◽  
Constitutional Law ◽  
High Court ◽  
Chief Justice

This article presents data on the High Court’s decision-making in 2017, examining institutional and individual levels of unanimity, concurrence and dissent. It does so in the context of the elevation of a new Chief Justice to lead the Court and the appointment of a new member to the bench at the commencement of the year. Recent public statements on the Court’s decision-making practices by the new Chief Justice and others inform discussion of the statistics. This article is the latest instalment in a series of annual studies conducted by the authors since 2003.

Remedying Misaligned Norms in International and Constitutional Law: Investment Treaties, Property Rights and Proportionality

2020 ◽  
Author(s):  
Jarrod Hepburn
Keyword(s):  
Decision Making ◽  
Property Rights ◽  
International Law ◽  
Constitutional Law ◽  
High Court ◽  
International Tribunals ◽  
Investment Treaties

The enlargement of the scope of international law has led to more frequent overlaps in the substantive rules of domestic and international law. One such overlap is in the rules on expropriation, or the protection of property rights. This article argues that Australian constitutional law and international law are misaligned on the question of expropriation, with international law generally imposing a higher standard of protection compared to the Australian Constitution. The article contends that this misalignment matters, because it is irrational and discriminatory, and because it hinders Australia’s compliance with international law by increasing the complexity of official decision-making. The article then considers whether and how the misalignment can be remedied. Although a deliberate re-alignment faces difficulties, the article concludes that a form of alignment may organically emerge for other reasons, as both international tribunals and the Australian High Court take tentative steps towards the use of proportionality to resolve property rights claims.

The Constitutional Duty to Give Reasons for Judicial Decisions

2017 ◽  
Vol 40 (3) ◽  
Author(s):  
Luke Beck
Keyword(s):  
High Court ◽  
Scholarly Literature ◽  
Judicial Decisions ◽  
Chief Justice

The obligation of judicial officers to provide reasons for their decisions has been described by Sir Anthony Mason, a former Chief Justice of the High Court, as an element of the broader ‘culture of justification’ that exists in modern democracies. While there is an increasing international scholarly literature examining the duty to give reasons for judicial decisions, the Australian scholarly literature is far less developed.

Gender, Internal Armed Conflict, and High Court Decision-Making in Transitioning Societies

2021 ◽  
Author(s):  
Lee Demetrius Walker ◽  
Melissa Martinez ◽  
Christopher Pace
Keyword(s):  
Decision Making ◽  
Court Decision ◽  
Internal Conflict ◽  
Political Rights ◽  
Habeas Corpus ◽  
High Court ◽  
Men 2 ◽  
Civil And Political Rights ◽  
And Gender ◽  
Conflict Intensity

Abstract Building on research that applies the policy deference model to high court decision-making during external war, we propose that conflict intensity, political government's preference on liberalization, and the gender of appellant impact the manner in which courts follow policy deference during internal war in transitioning countries. Contextually, we argue that shifts in women's roles and gender relations during internal conflict in transitioning societies condition the manner in which civilian courts make decisions on civil and political rights cases. During external war in advanced democracies, policy deference infers that courts will rule more conservatively on civil and political rights cases. Using habeas corpus cases as a representation of civil and political rights’ protection from El Salvador's civil war period (1980–1992) and two measures of conflict intensity, our findings indicate that the court's decision-making process deviates from conventional expectations derived from the policy deference model in three ways: (1) conflict intensity solely affects the court's decision-making on habeas corpus cases involving men; (2) the political government's choice for political liberalization affects the court's decision-making on both women and men cases; and (3) gender conditions the manner in which policy deference applies in a society that is experiencing societal change.

scholarly journals The Narrative Model of Constitutional Implications: A Defence of Roach v Electoral Commissioner

2019 ◽  
Author(s):  
Jonathan Crowe
Keyword(s):  
Constitutional Law ◽  
Social Practices ◽  
Court Decisions ◽  
High Court ◽  
Fictional Narratives ◽  
Narrative Model ◽  
Way Of Thinking ◽  
Relationship Of ◽  
The Relationship

The role of implications in Australian constitutional law has long been debated. Jeffrey Goldsworthy has argued in a series of influential publications that legitimate constitutional implications must be derived in some way from authorial intentions. I call this the intentionalist model of constitutional implications. The intentionalist model has yielded a sceptical response to several recent High Court decisions, including the ruling in Roach v Electoral Commissioner that the Constitution enshrines an implied conditional guarantee of universal franchise. This article outlines an alternative way of thinking about constitutional implications, which I call the narrative model. I argue that at least some constitutional implications are best understood as arising from historically extended narratives about the relationship of the constitutional text to wider social practices and institutions. The article begins by discussing the limitations of the intentionalist model. It then considers the role of descriptive and normative implications in both factual and fictional narratives, before applying this analysis to the Australian Constitution. I argue that the narrative model offers a plausible basis for the High Court’s reasoning in Roach v Electoral Commissioner.

13 Conclusion

2019 ◽  
Author(s):  
Dickson Brice
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Common Law ◽  
Supreme Courts ◽  
Chief Justice ◽  
The Future ◽  
The Creation ◽  
Conference Papers ◽  
Court Of Appeal

This chapter attempts to sum up the conclusions that can be drawn about the Irish Supreme Court from the surveys and analyses in foregoing chapters. It highlights the constraints placed on the Court’s decision-making, especially its lack of power to turn away many appeals. Some of the Court’s principal achievements are reviewed but some of the opportunities it has failed to exploit are also referred to. The future of the Court is considered, especially in light of the creation of the Court of Appeal in 2014. Attention is given to the importance of strong leadership at the Chief Justice level and to the need for more public pronouncements from the judges in lectures and conference papers. Final remarks are made on how the Court compares to supreme courts in other common law countries.

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