Great Australian Dissents … Sir Tony Mason launches learned tome … Noble and notable dissenting judgments … Judges who had an eye on the future … Disagreements on High 

Great Australian Dissents, edited by Prof. Andrew Lynch, is well overdue for a mention. It was launched by Sir A. Mason at the Art Gallery of NSW before a star-speckled cast of onlookers. 

It did seem odd that the former High Court chief justice should do the honours as he was never regarded as much of a dissenter. 

As CJ he had the second lowest individual rate of dissent (6.06 percent) in the modern history of the High Court, and this was at a time when the court was much more divided, in 43 percent of cases – at least that’s what Prof. George Williams said in his launch introduction. 

Au contraire, says Prof. Lynch. Mason is among a select group of judges in the book to have more than one dissenting judgment discussed and he is the only one who is the subject of two chapters. 

In his 45 year judicial career no one thinks of Sir Tony as a great dissenter however, as Andrew Lynch points out, the purpose of the book is to examine “great dissents” not great dissenters. 

“A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” 

In Al-Kateb, Kirby’s dissent has received wide public recognition, yet Prof. A.J. Brown, who authored the chapter, said that Smiler Gleeson’s judgment, based on principles of legality, has the strongest claims to the accolade of a “great dissent”. 

Mason referred to Lord Ackner’s observation that a judge only dissents, “when one’s sense of outrage at the majority decision outweighs one’s natural indolence”. 

The book’s introduction says that with Kirby and Murphy their dissents may be seen as an appeal for future vindication. 

Mason observes that with Haydon the dissent “is a lament that the court has departed from its traditional and true responsibility”. 

More commonly, “dissenters simply disagree with the majority’s view of the law which they feel they are duty bound to disavow” – viz. Barton in the Wheat case, Dixon and Evatt in Lowenstein and Stephen in Henry v Boehm. 

Prez of the UK Supreme Court Lord Neuberger said that, “Today’s dissent can often be tomorrow’s authority” – something that was born out by Evatt in Chester v Waverley Corporation, regarded in Mason’s student days as a “masterpiece”.  

However, Mason disagrees with Neuberger’s suggestion that dissents should be short. Sir A said: 

“A judge who disagrees with the majority needs to establish as clearly and compellingly as possible why his or her view of the case is correct.” 

A little something to get you through the Easter break.