NZYQ: A new style of unanimous judgment for the High Court of Australia
This post is part of AUSPUBLAW's forum discussing the High Court's recent judgment in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.
31.1.2024
In NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, the High Court overruled its 2004 judgment in Al-Kateb v Godwin (2004) 219 CLR 562. The Court in NZYQ held that immigration detention of aliens by the Executive was constitutionally limited to what was reasonably capable of being seen as necessary for the purpose of the alien’s removal from Australia or enabling an application by the alien for permission to remain in Australia to be made and considered, and that ss 189(1) and 196(1) of the Migration Act could not validly authorise the continuing detention of a person in respect of whom there is no real prospect of removal becoming practicable in the reasonably foreseeable future.
Much has been, and will continue to be, written about the substance of the decision and its implications, both political and legal. This post focusses on some notable features of the judgment itself: in particular, the presentation of a single judgment joined in by all Judges, but which identifies individual positions taken by some of those Judges.
NZ: Why Queue? Not the latest advertising slogan for Tourism New Zealand.
A 'unanimous' judgment
The 'headline' is that the High Court overruled Al-Kateb in a single unanimous judgment of all members of the Court. Certainly, the Court published a single set of reasons, which was joined in by all members of the Court.
All Judges agreed that 'the constitutional holding' in Al-Kateb (but not the other holding concerning the statutory construction of relevant provisions of the Migration Act) should be overruled. All Judges agreed on the answers to the questions reserved and the relief that should be granted. All Judges agreed on the new formulation of the relevant constitutional principle.
However, the reasons in the single joint judgment in NZYQ were unusual, in that they separately identified the individual positions of particular judges who participated in the joint judgment. Two parts of the judgment stand out in this respect.
Identifying Judges who did not agree to making an order at the close of oral argument
The first stems from the fact that the reasons for judgment in NZYQ were reasons for orders that had already been announced at the close of oral argument. That is not the usual course, but it is not all that uncommon. By my reckoning, the High Court announced its orders in advance of publishing the reasons for those orders in 79 of the cases heard by a Full Court between 2001 and 2023 – an average of just under 3½ cases per year over that period.
In NZYQ, at the conclusion of the second and final day of oral argument, it was announced that 'at least a majority' of the High Court favoured the order that was announced. That is also not unheard of: a quick informal survey by Prof Jeremy Gans has suggested that, between 2000 and 2023, it was 'roughly once a year' on average that the Court announced orders, in advance of reasons, which were supported by 'at least a majority'.
In NZYQ, the Court itself (at [8]) explained why the order was announced in that fashion and identified the Judges who had not been prepared to agree to the order at the time when it was made – as well as confirming that they now agreed with the order:
At the end of the hearing on 8 November 2023, the Full Court made an order stating answers to each of the questions of law stated for its consideration in the special case. The order was announced as having been agreed to by 'at least a majority' because two members of the Court (Gleeson and Jagot JJ) did not agree that the Court should make orders without publishing reasons and, in any event, required further time to consider the matter. Having considered the matter, Gleeson and Jagot JJ agree with the order made on 8 November 2023.
Some commentators had criticised the Court for announcing its order before delivering its reasons. Comments made by the Minister for Home Affairs could also have been understood as implying criticism, leading a former Chief Justice to defend the course taken by the Court. It is possible that the Judges who would have preferred to make the orders only upon the delivery of reasons insisted on that fact being recorded, or that the Judges as a group thought that it was only fair to do so. Whatever the reason, the effect was to explain the situation, and the reasons for it, with apparent transparency.
Different Judges’ distinct paths of reasoning to reach the same conclusion
The second aspect of the judgment identifying the individual positions of different members of the Court is more important, because it relates directly to the legal reasoning that led to the conclusion reached and the order made.
At [43] of the joint judgment, the Court flagged the divergence in the reasoning of its members:
This Court is unanimous in concluding that this is an incomplete and, accordingly, inaccurate statement of the applicable principle. Two different approaches are taken to that conclusion. The first approach is taken by six of us and set out below. The second approach is taken by Edelman J.
The first 'approach', taken by six Judges, was explained at [44]-[50]; the second, that of Edelman J, was set out at [51]-[54]. Although expressed – like the rest of the judgment – in the voice of the Court, and thus referring to Edelman J in the third person, one might reasonably infer that the latter paragraphs (at least – I will not speculate as to the author of the parts of the judgment with which all Judges agreed) were penned by Edelman J. In addition to the style of writing and the inherent improbability of another Judge seeking to articulate reasons explicitly attributed only to Edelman J, there is also the hopeful description of Edelman J’s approach as one 'which has not yet been recognised by this Court' (emphasis added).
So, we have a judgment attributed to the whole Court, but which contains explicit reference to the positions of individual Judges, and even an acknowledgment of a split in the reasons.
A quick (figurative) ring around of various people who might be expected to know suggests that no-one can recall the High Court delivering a joint judgment like this before. Ordinarily, if one Judge is disinclined to adopt the reasoning of the others (or the particular expression of that reasoning) – as was the case for Edelman J in NZYQ – they deliver their own judgment. A concurring judgment of this kind may be presented as a standalone judgment, complete in itself, or it may just seek to explain the point of departure and difference in the reasoning of the concurring Judge (such as Steward J’s judgment in this case).
The approach is not entirely without precedent. One example of which I am aware arose in the Full Court of the Supreme Court of South Australia, but was precipitated by an unusual statutory provision that declared that the Full Court should generally deliver a single judgment reflecting the view of the majority of the Court and that 'no judgment with respect to the determination of any question shall be separately pronounced by any other member of the court'. The reasons for judgment (R v Brown and Morley [1968] SASR 467) revealed a split in the views of members of the Court using language such as 'we all think' in discussing some issues, and 'a majority of us think' and '[o]ne member of the Court thinks' in discussing others. (The case, which is notable for other reasons as well, has been discussed by Prof Joe McIntyre in an open access article and a book chapter.)
Joint judgments ain’t joint judgments (well, not always in the sense one might assume)
I digress briefly to recall what we know about the way joint judgments are produced in the High Court.
In recent times, members of the High Court (with the possible exception of Heydon J for a short period) have acquiesced in a convention, described publicly by former Chief Justice Susan Kiefel AC, in which any Judge may circulate a draft opinion and any other Judge may then elect to 'join' in that judgment. Kiefel CJ described the practice as 'requir[ing] … the author of a judgment to join in any judge who circulates a concurrence with the judgment'. Such a judgment then becomes – to the outside world – a 'joint' judgment of the original author and any other judges who may elect to 'join' in it.
No doubt, on occasion another Judge might offer suggestions for improvement to a circulated judgment, or they might indicate that they would be prepared to join in a judgment if a particular part of it were reworked. In some cases the end product may be a truly 'joint' effort; the extent to which that is so may vary with the personalities of the individual Judges. But some 'joint' judgments are solely, or at least primarily, the work of a single Judge. (Of course, what goes around comes around, and I am not suggesting most joint judgments, even those attributed to the same or overlapping combinations of Judges, are all mostly the work of the same Judge.)
Very likely there are cases where a joint judgment does reflect more of a truly 'joint' effort or, at least, a division of the labour of writing. For example, in cases where there are a large number of quite discrete issues and where the work involved in writing the judgment will be substantial, it may well make sense for a group of Judges who appear to be of like mind to divide the writing of various sections of a joint judgment between them.
Except in relation to the split explained in [43]-[54], there is no obvious reason to suppose that the joint unanimous judgment in NZYQ was reached otherwise than in accordance with the High Court’s convention described above. That is, it is probable that the remainder of the NZYQ judgment was primarily written by one Judge, and joined in by the other members of the Court (with or without minor contributions from them). This would make good sense in the context of a succinct judgment in which there were relatively few issues to be addressed, all of which were quite closely connected.
Why the unusual approach in this case?
Aside from the disagreement of one Judge about one step in the reasoning, NZYQ was arguably well suited to the production of a single unanimous judgment for several reasons.
First, the issue was one of considerable importance which was likely to garner significant attention, beyond the relatively small section of the public who usually take an interest in High Court judgments. The decision was of political significance. It is desirable that the Court’s reasons themselves be accessible and readable by members of the public in such a case. The delivery of a single, relatively short, judgment of the whole Court would be conducive to better public understanding of the case.
Secondly, the Court was overruling a previous judgment on an important constitutional issue. The previous judgment had been a narrowly split 4:3 decision. The perceived legitimacy of the change in direction might well be enhanced by emphasising the extent to which all members of the Court agreed and de-emphasising areas of disagreement.
Thirdly, what turned out to be the central issue – whether, constitutionally, detention under the Migration Act could continue indefinitely in all circumstances where removal from Australia was not possible, or whether there must come a point where the prospect of removal was so remote that detention for that purpose is no longer permitted – was a fairly discrete one which essentially had to be answered either 'Yes' or 'No'.
Fourthly, there were some other subsidiary issues, including what the precise test should be to identify when initially-lawful detention would become unlawful. If the members of the Court all agreed on the 'headline' issue, it was obviously desirable that, if possible, it should clearly and unanimously express a single 'test' or verbal formula for when the point had arrived when a detained non-citizen must be released. (This the Court did, settling on 'no reasonable prospect of removal in the reasonably foreseeable future'.) In short, it is desirable that the law be clear, especially where there has previously been a division of opinion on the Court. This kind of consideration previously led the Court, in dealing with another area of the law (the admissibility of tendency evidence in sexual offence cases), to “resolve[] to put aside differences of opinion and speak with one voice on the subject” (R v Bauer at [47]).
In each of these respects, the Court may well have perceived value in presenting itself as fundamentally united with regard to this case.
The future?
It is tempting to further speculate that the unique features of the judgment in some way reflect the coming of a new era for the High Court. NZYQ was the first constitutional case heard and determined by the Court since the appointment of Justice Stephen Gageler AC as Chief Justice (as well as the appointment of Beech-Jones J).
Perhaps all that can be really said in this regard is that, as joint judgments go, this one is relatively candid, and rather less suppressing of judicial individuality – frankly acknowledging a divergence of views rather than, for example, hiding compromise through the removal of aspects of the reasoning with which all judges could not agree; careful wording of key passages to reflect a 'lowest common denominator' on which agreement could be reached, while hiding potential disagreements lurking nearby; or Judges refraining from stating some of their personal views in the interests of achieving unanimity and certainty.
This at least seems consonant with the value which Gageler CJ in particular, but also undoubtedly other Judges on the current Court, evidently place on careful consideration of cases by individual judges and on the 'duty of each individual member of an appellate court to form and to act on his or her own true view of each case before the court'. It is a form of joint judgment that may be seen as more completely accommodating these values, though, perhaps, at the expense of others.
In any case, I do not think we should expect unanimous judgments in which the different positions of individual Judges are expressed to become the norm. NZYQ presented a constellation of unusual features.
Stephen McDonald SC is a barrister at Hanson Chambers and an Adjunct Associate Professor at the University of Adelaide.
Suggested citation: Stephen McDonald, ‘NZYQ: A new style of unanimous judgment for the High Court of Australia’ (31 January 2024) <https://www.auspublaw.org/blog/2024/1/nzyq-a-new-style-of-unanimous-judgment-for-the-high-court-of-australia>