Virginia Bell seems to revel in the fact that very few people know she is a High Court judge. She has been known to tell people that a Google search of her name is more likely to turn up a topless model.
When Bell turned up at the University of NSW to launch a law journal two years ago she used perhaps the world’s most famous judge to make the point.
“For $24, you can buy a Ruth Bader Ginsburg coffee mug,” Bell told the audience.
“It features a rather grim portrait of her honour under the words ‘I dissent’. How lucky we are that in Australia, outside the law faculties, very few people would be able to name the Chief Justice of the High Court let alone the six puisne justices.”
The last judge who most Australians could have named was Michael Kirby. He may have been feted by the public, but when he had his farewell in 2009 not one of the sitting judges turned up.
Since then, Bell and Chief Justice Susan Kiefel have been distancing the court from the legacy of Kirby and the other judicial maverick of the past 20 years, Dyson Heydon. They are sending a message, says one commentator, that “you are either a team player or you are showing off”.
More importantly, they have quietly formed – with Kiefel’s fellow Queenslander Patrick Keane – what Professor Jeremy Gans of the University of Melbourne regards as “the most powerful bloc of judges in the court’s history”.
While this debate has so far been confined to legal circles, it has major consequences for the entire nation as well; the court is, after all, the arm of government that decides whether a law – and even a politician’s right to sit in our parliaments – is valid.
Gans has studied the judgment flow of the trio – who sit alongside each other on the bench – and says they “seem to have remarkably similar minds on everything”. Each agree with the orders of the court in around 97 per cent of cases. In the 116 cases where “KBK” have sat together, they agreed 88 per cent of the time.
“They are almost certainly the most constant (and arguably therefore the most powerful) bloc of judges Australia’s High Court has ever seen.”
Gans points out that “on a seven-member court with no political blocs, three judges routinely agreeing is enough to allow them to determine nearly all of the court’s orders”.
Former High Court judge Michael McHugh saw the effect of a three-judge bloc first hand.
“I regarded [Chief Justice] Murray [Gleeson] and myself as irrelevant players while we were on that court together for the reason that [Bill] Gummow and [Ken] Hayne always seemed to come together,” he said in 2014. “And they usually had Mary [Gaudron]… So, as long as those three were there – it didn’t matter what they decided – they would either pick up [Ian] Callinan or pick up [Michael] Kirby.”
The lead figure was Gummow, whom McHugh described as “a great judicial politician; he always had three votes”.
So do Kiefel, Keane and Bell. However, they are picking up more than the one judge they need for a majority. Of the first 17 cases decided this year 15 had a unanimous verdict.
The two Queenslanders on the court – Kiefel and Keane – must like working together. They have paired up in 97 per cent of cases since Keane joined the court in 2013, ahead of even Bill Gummow and Ken Hayne’s 95 per cent from 1998-2012.
It had been three and a half years since both Kiefel and Keane dissented, until the Amaca v Latz case in June. Even then, they wrote together.
The current court – and it changes character with each new justice – will have served almost four years together by the time of the next retirement, Justice Geoffrey Nettle, in 2020.
Kiefel is the longest-serving judge, having been appointed by the Howard government in 2007. She can serve until she turns 70 in 2024. After her came Virginia Bell (2009 and 2021), Stephen Gageler (2012/2028), Patrick Keane (2013/2022), Geoffrey Nettle (2015/2020), Michelle Gordon (2015/2034) and James Edelman (2017/2044).
From 2013 to 2017, all members of the court backed the final orders in 75 per cent of cases. This is well ahead of 2007-2012 (67 per cent), 2003-2007 (54 per cent) and 1998-2003 (61 per cent).
The individual figures since 2013 are even more revealing. Kiefel tops the table when it comes to being in the majority; 97.4 per cent of her judgments concur with final orders. Keane is next on 96.7 per cent, followed by Bell (96.7 per cent). Then there is a gap to Nettle (90.8 per cent), Gordon (90.7 per cent), Edelman (90.6 per cent) and Gageler (87.8 per cent).
Gans notes that in their first four years together on the court, Kiefel and Bell agreed on the court’s order in around 90 per cent of cases. The figure has been above 96 per cent since 2014.
There is a crucial factor in the shift to consensus.
Missing from the current High Court line-up is a Michael Kirby or Dyson Heydon – the “Great Dissenter” and the “Great Loner”. Both were partial to a minority opinion and liked to write on their own, particularly Heydon in his latter years. Justice Stephen Gageler showed some early promise – but his dissent rate of 12 per cent is way short of Kirby (around 60 per cent) and Heydon (55 per cent in his final year).
‘Scarred by their legacy’
The Chief Justice is the only judge to have served with both Kirby and Heydon. Legal academic James Lee of King’s College, London, suspects she is “scarred by their legacy”.
Lee has done comparative work on the High Court and the UK Supreme Court, in two stints with the Gilbert + Tobin Centre of Constitutional Law at the University of NSW. He says the High Court’s current approach “is inextricably tied to the legacy of lone wolves on the court”.
“It’s clear that giving an individual judgment is seen as being like Kirby and Heydon,” says Lee.
“On Twitter, there is a hashtag ‘be more Gageler’. Chief Justice Kiefel and Justice Bell would certainly prefer the hashtag ‘be less like Heydon’.”
He says the Chief Justice is “not as interested in the idea of offering a distinct contribution; she’s more interested in being efficient”.
That efficiency has been accompanied by a very dry writing style. NSW Court Appeal President Margaret Beazley has described it as “minimalist”. Gans says the KBK method is a case of “here is our view; everyone else is wrong; the end”.
There are few flourishes, but Kiefel sees that as a virtue.
“I have always assumed it to be a universally held view that a judgment should be as succinctly stated as the matter allows,” she said last year.
“We no longer write sentences which travel across many pages. We have fullstops, paragraphs and even headings.”
In Kiefel’s view, “a single judgment of the court or of the majority carries greater authority [and] instils confidence in the court’s decision”. It also means there is no room to revisit it at a later date based on a dissent or a separate opinion.
Both Gans and Lee build on the High Court judgment statistics compiled by Professor Andrew Lynch and Professor George Williams since 2003.
Lynch says “there is no doubt that the Chief Justice and Justices Bell and Keane comprise a very regular coalition in a court where no other particularly obvious and regular bloc exists”.
However, he hesitates to accept the “most powerful bloc ever” description. He says Justice Gummow was “especially effective at building regular judicial coalitions over a long period” and that the original bench of Chief Justice Samuel Griffiths and Justices Edmund Barton and Richard O’Connor “displayed both constancy and significant power as a decision-making bloc” in the first decade of the court.
“What is notable about Kiefel, Bell and Keane,” concedes Lynch, “is that in extra-judicial speeches they each have explained and championed their practice of joint judgment delivery over individualism.”
He says it is “undeniable” that Justice Heydon prompted a discussion among the Court about the best way for them to work as individuals.
“Those reflections have been unusual in having been through public speeches and articles. It’s been a very revealing debate.”
“A long judgment which says more than is necessary is less likely to attract agreement,” Kiefel says. “Neither will a judgment written in the idiosyncratic style of the author, or in florid language from the classics or 19th-century literature. It is better to resist the temptation to quote extensively from literature unless the aim is not to have others join in.”
(Heydon has attracted quite a following for his colourful judgments. In one involving alleged war criminal Charles Zentai he wrote: “The victors were animated by the ideals of the Atlantic Charter and of the United Nations. The Universal Declaration of Human Rights was about to peep over the eastern horizon. But first, they wanted to have a little hanging.”)
The Chief Justice liked that the court’s practice of joint judgments rendered “the author largely anonymous” and said it was easier to detect a clear ruling.
Lee says the speech carried the message “you are either with us or against us; you are either a team player or you are showing off”.
One difference between the top court in the UK and US v Australia, is that the High Court Chief Justice always delivers the first judgment. There is a school of thought that this makes it imperative that the chief’s judgment contain as many voices as possible. Kiefel seems to be a subscriber, but she has also had a line-up that’s been willing to play along.
In the US Supreme Court, the majority opinion goes first and says who wrote it and who signed up to it. In the UK, the lead opinion is also first and when judges have not made a substantive contribution they will only say “I agree”. It also highlights dissents in its media summaries, unlike the High Court.
In the High Court, the only time justices say a short “I agree” is when there is a new member of the court. It has become custom to have six “I agrees” alongside a novice’s first judgment.
“I don’t see why it can’t do the same in all cases,” says Lee. (He notes that Kirby upset the applecart in Kiefel’s first case, but hastens to add: “I am not suggesting that’s behind this whole story.”)
Lee was surprised at Kiefel’s admission that joint judgments are usually the work of one justice: “That’s extraordinary – to say on the one hand ‘we insist on there being a joint judgment which represents the views of all the judges’ and then to say ‘but really one of us wrote it’.”
That two women are driving this push for the court to speak with one voice where possible is perhaps a coincidence. It’s more likely to do with the fact they share a similar view about the judicial function and a distaste for what Lee calls “judicial peacocking”. It’s how that distaste is shaping the character of the court that intrigues.
It might also be a coincidence that Keane and Kiefel are Queenslanders. And also that Keane replaced Heydon. And that this trio of “Great Assenters” sit alongside each other, just like Gaudron, Gummow and Hayne.
For all we know they might even have the same taste in coffee mugs; ones that cost $25 and say “I dissent”.