Judicial dissent - pointless distraction or institutional necessity?

The Hon. Justice Michael Kirby AC CMG

Monash Law Students' Society Lecture

The binding rule of judicial decisions is discovered by disregarding opinions that favour orders different from those entered by the Court. So what is the point of writing dissenting reasons?  In the big institutional picture, are they an irrelevancy to the process?

In this lecture Justice Michael Kirby, who is quite often in dissent in the High Court, will capture this issue.  He will emphasise that levels of dissent depend on who one is dissenting from and how difficult and controversial the issues are (in the NSW Court of Appeal, as President, his average dissent rate was 14% ‑ in the High Court it is more than double that figure).

Justice Kirby will seek to explain why the English judiciary introduced dissent whereas European Courts to this date usually forbid it.  He will explain, by reference to American and Australian cases, that dissent is sometimes useful in foreshadowing developments in the law.  By reference to research of Professor Cass Sunstein (Chicago) he will explore the institutional reasons for dissent in politics, business and the courts.  He will end by answering questions and explaining the decision making process.

Speaker profile

Justice Michael Kirby was appointed to the High Court of Australia in February 1996. At the time of his appointment he was President of the New South Wales Court of Appeal, having been appointed to that office in September 1984. He was admitted to the New South Wales Bar in 1967. He was appointed a Deputy President of the Australian Conciliation and Arbitration Commission in 1975. He served as first Chairperson of the Australian Law Reform Commission from 1975 to 1984. In 1983 he became a judge of the Federal Court of Australia, serving on that Court until 1984.

He has held numerous national and international positions including on the Board of CSIRO, as President of the Court of Appeal of Solomon Islands, as UN Special Representative in Cambodia and as President of the International Commission of Jurists. In 1991 he was appointed a Companion in the General Division of the Order of Australia.

This lecture is proudly presented by the Monash Law Students' Society together with the Monash Law School.