Journal article

The High Court on constitutional law: the 2011 statistics

Courts Law Local government Australia

This article presents statistical information about the High Court’s decision making for 2011 at both an institutional and individual level, with an emphasis on constitutional cases as a subset of the total.

The authors emphasise the importance of acknowledging the limitations that inhere in an empirical study of the decision-making of the High Court over just one year. In particular, care must be taken not to invest too much significance in the percentage calculations given the modesty of the sample size, especially in respect of the smaller set of constitutional cases. Nevertheless, this annual exercise remains worthwhile in that it offers assistance to those followers of the Court’s decisions who are interested in the way in which the dynamics between its individual members translate into institutional outcomes. It provides simple empirical data about the functioning of the Court that may otherwise be left merely to impression.

The authors endeavour to draw readers’ attention to trends and patterns observed in earlier years where these enhance understanding of the significance of these results. As it turns out, the results of our 2011 survey of decision-making on the Court provide a clear demonstration of the value of looking at the Court on a yearly basis. They are, in several key respects, notably different from those of the immediately preceding years.

Statistical representations of the way in which the High Court and its Justices decided the cases of any given year are only a supplement, rather than any kind of substitute, for scholarship that subjects the legal reasoning contained in the cases to substantive analysis or examines the impact of the Court’s decisions upon government and the community. The authors also refrain entirely from making the exercise one from which they presume to make inferences about the particular working relationships amongst the Court’s members. The results are drawn only from what may be observed from the public record of the Court’s decided cases. This remains inadequate source material from which to assess, for example, the level of influence which any Justice has amongst his or her colleagues.

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