There has, I would suggest, been a discernible shift in the judgment-writing process of the High Court. The 5–7 separate judgments of 100 plus pages of the Mason era⁴ and of the early years of the court under Gleeson CJ⁵ have been replaced, at least in a sufficient number of cases to make comment, by a minimalist, largely propositional style of reasons, often with a plurality judgment.

Because a court speaks through its judgments, this trend, assuming it is a trend, has led me to ask whether this reflects a statement by the High Court of its role at the apex of the appellate hierarchy and whether this, in turn, has implications for the role of intermediate appellate courts, where the reasons have remained more discursive and detailed, particularly, but not only, where social issues are raised.

An exploration of this question can only be made through the decided cases. Space permits a consideration of only a few, and then with a generality that does not purport to be a definitive statement of the full import of the decisions to which reference is made.

Let me start with Norrie v NSW Registrar of Births Deaths and Marriages⁶ which concerned a challenge to a decision of the Registrar of Births, Deaths and Marriages to refuse to register Norrie’s sex as “non-specific”. Norrie’s contention was that the ordinary usage of the word “sex” had developed to encompass more than a binary meaning.

The question in issue was whether the power to register a person’s “change of sex” after sex affirmation surgery, pursuant to s 32DC of the Births, Deaths and Marriages Registration Act 1995 (NSW), extended to the power to register a change that was neither specifically male nor female. The Court of Appeal held that it did.

The case as argued on the appeal raised questions of changing community values and understandings of gender and the extent to which those matters were relevant to the question of statutory construction with which the case was concerned. The judges of the Court of Appeal, (including in my own judgment), dealt with those questions in detailed judgments totalling 306 paragraphs.

The High Court⁷ in 48 brief paragraphs dismissed the appeal, differing slightly in its formulation of the outer boundaries of the issues raised by the case. The judgment was technical and narrowly framed. Its focus was on the terms of the statute and not on the indicia of changing community standards, advances in medical and other relevant knowledge, the extent to which the court was entitled to rely on common knowledge,⁸ or how the legislation was to be read cohesively with other legislation in which the sex of a person was relevant,⁹ all being matters that had engaged the NSW Court of Appeal.

The High Court’s approach was to be welcomed — it had turned, what to the Court of Appeal was a difficult and contentious case, into a simple case of unambiguous statutory construction. However, there is no social learning or dissertation in the court’s reasons. That may be explicable on at least two bases. First, the legislation itself recognised sex change, but had not in express words recognised as non-specific. Secondly, the court had dealt with gender characteristics in AB v Western Australia¹⁰ — although in that case, the legislation was framed in binary gender terms. It may therefore have been considered unnecessary to revisit that territory (other than by way of footnote to AB).

The recent case of Lindsay v The Queen¹¹ is another example. The appellant, an Aboriginal man, had been convicted of murder following a trial before a jury, in circumstances in which he had stabbed and killed the victim after being the subject of a homosexual advance. The appellant was offered money for sex, in his house and in front of his family. The appeals to the Court of Criminal Appeal of SA and subsequently the High Court primarily concerned the adequacy of the trial judge’s directions relating to the partial defence of provocation.

The principal judgment in the Court of Criminal Appeal, that of Peek J (with whom Kourakis CJ agreed), comprised 186 paragraphs, and very comprehensively outlined the relevant evidence and authorities.¹² Justice Peek found that, although the jury was misdirected as to provocation, the proviso should apply and the appeal be dismissed. This was primarily because provocation should not have been left to the jury. As in Norrie, one important strand of reasoning related to community values. His Honour considered, on the basis, inter alia, of academic literature, that although provocation may well have arisen in times when homosexual acts were criminalised and men were accustomed to resort to violence to defend their honour, “times [had] very much changed”.¹³

The High Court allowed the appeal in two judgments, comprising a total of 89 paragraphs. The central finding was that Peek J erred in placing weight on contemporary attitudes to homosexuality given that there were circumstances of the advance, other than its homosexual nature, that might give rise to provocation.¹⁴ However, the circumstances of the killing were outlined in only a few sparse paragraphs.¹⁵

There are other examples. Clark v Macourt¹⁶ was a case concerning a fundamental question about the calculation of damages in contract awarded to the purchaser of a fertility clinic sold by deed after the vendor provided defective donor sperm as part of the assets of that business. The High Court allowed an appeal from a judgment of Tobias AJA of 164 paragraphs (with which Barrett JA and I agreed in short concurring reasons)¹⁷ by a majority decision comprising 71 paragraphs. The case was by no means simple and its outcome in the High Court has excited some academic controversy.¹⁸ The focused, somewhat sparse approach of the court was, perhaps, surprising in the context of Tobias AJA’s very extensive review of authority.

Subject matter aside, the case involved the application of the principles of damages in contract law to unusual factual circumstances. However, the court, with a minimalist approach, stated the relevant principles in what I have already characterised as a propositional style. In short, it was making a statement as to what the law is as opposed to engaging in any detailed way, in either a search for the correct principle of law or an explanation of why the law is as it stated it to be.

In Magaming v The Queen,¹⁹ the appellant was an Indonesian fisherman who had been convicted of people smuggling offences which the trial judge held fell “right at the bottom end of the scale” of seriousness.²⁰ Magaming challenged the constitutionality of mandatory minimum sentencing laws which had resulted in his conviction of a term of imprisonment of five years. The constitutional challenge was rejected in the NSW Court of Criminal Appeal in a lead judgment of Allsop P comprising 126 paragraphs, with which the other members of a five-judge bench agreed.²¹ A majority of the High Court dismissed the appeal in 54 paragraphs. Fewer applicants were involved before the High Court than before the Court of Criminal Appeal; however, largely, the same questions arose. The circumstances of the offences and the offenders were outlined in only two introductory paragraphs of the High Court decision.²² Unlike the Court of Appeal decision which explored in depth the purpose of the legislation, the High Court made crisp statements of the law with only short exploratory reasons. Magaming therefore provides a clear example not only of the High Court’s condensed approach to factual context, but also its propositional approach to authority and argument.

The ACT same-sex marriage case, Commonwealth v Australian Capital Territory,²³ is another notably condensed High Court judgment touching on a very live social issue. The unanimous judgment opened with the sentence, “[t]he only issue which this Court can decide is a legal issue”. The judgment comprised 62 paragraphs, about half of which addressed the core constitutional question, namely, the meaning of “marriage” in s 51(xxi). Perhaps the most legally vexed question that arose, being the jurisprudential approach to take to the shifting boundaries of “marriage”, was dealt with in 10 paragraphs,²⁴ notwithstanding the existence of substantial commentary on the issue.²⁵

The case was decided against the Territory, on conventional principles of statutory interpretation, although the constitutional finding could be seen as a silver lining for same-sex marriage advocates. At no point did the court acknowledge a role in the larger public dialogue surrounding same-sex marriage and relationships. Indeed, the court’s short, propositional approach, particularly on the constitutional question, seems almost to deny the existence of any substantial legal controversy, let alone the social dynamic that underpinned the attempted legislative reform.

What does this tell us, if anything, about the present role and function of the High Court? There are a number of immutable aspects of its function, the most fundamental of which is its constitutional role in determining the law of Australia as is “appropriate to the times”.²⁶ It is, in its appellate role, a court of error.²⁷ In addition, the High Court has in recent years emphasised the centrality of the institutional integrity of courts in the separation of powers doctrine enshrined in the Constitution. The increase in statutory governance of large aspects of hitherto common law rights and of new rights²⁸ has also had its impact.

The court may consider that the social and/or value-laden underpinning of many of the cases that come before it has already been laid out by the intermediate appellate court. Another possibility is that the court’s current approach to its judgment writing is responsive, at least in part, to the criticisms made in the past as to its lengthy judgment writing. There is substantial commentary decrying extended recitations of undisputed facts, dense citation, the marshaling of long lists of factors of minimal relevance, and other forms of jurisprudential padding.²⁹

Australian courts have been identified as particular offenders. One analysis of High Court judgments up to 2007 found that, in comparison with the final courts of appeal of Canada and the United States, the High Court has consistently (and increasingly) produced the longest judgments by average word length.³⁰ If we are in the early days of a trend towards more focused and succinct High Court judgments, it may be, in part, in response to these critiques.

It may also be that into its second century, aspects of the court’s jurisprudence are settled and therefore do not require long dissertation. In short, there is simply less to argue about. The High Court’s focus may, therefore, be on ensuring that lower courts “get it right” and that the court has determined this should be done in judgments that are short and unadorned.

What, then, is the position in intermediate courts of appeal? The starting point in the consideration of judgment writing, as in all forms of writing, is audience and purpose. Judgment writing poses its own challenges because of the multiple functions judgments serve and the multiple audiences for whom they are important. This is nowhere more true than in the context of the intermediate appeal.

The first audience for which any judgment is written is the parties to the dispute — indeed, one piece of advice often given to judges is to write for the losing litigant.³¹ Confidence in the legal system, and therefore in the rule of law, demands that litigants understand the reasons for their loss and, in particular, that it was by operation of law and not judicial whimsy or eccentricity. This is best achieved if the basis of the reasoning that leads to the outcome is revealed. This may be seen as part of the intermediate appellate court’s significant rule of law function.

There is a second audience, those who have an interest in the legal issues raised in the judgment of the intermediate appellate court. Regardless whether it is correct to say that intermediate courts of appeal have a declaratory function, these judgments are of fundamental importance for this audience — it is the revelation of the way the law is administered in the particular jurisdiction.

For intermediate courts of appeal there is of course a third audience — the High Court and the requirements of Kuru v NSW,³² although it is not the point of this paper to consider the implications of that decision.³³ Nor do I seek to touch upon questions of writing for the higher appellate court.³⁴

As is apparent, therefore, I have not discerned a similar, propositional approach in judgments of intermediate appellate courts as I have in the High Court. There are reasons why this is likely to be so, relating to the function and practice of intermediate courts of appeal. In particular, intermediate appellate courts do not have the same constitutional function as the High Court, and there remains debate as to their declaratory role in the development of the law.³⁵ Further, appeals in intermediate courts are by way of rehearing, which is likely to require a fuller consideration of factual as well as legal issues. In courts such as the NSW Court of Appeal, the practice of assignment of a lead judgment to a particular judge may require the setting out of facts and arguments for the other judges on the bench. Finally, intermediate appellate courts are bound to apply the common law of Australia, which necessitates the consideration of judgments of other intermediate courts on the issue in question and, should there be a challenge to the correctness of those judgments, of whether they are “plainly wrong”.³⁶

More pertinently to the point I seek to make in this paper, there is value in presenting a case in its context — factual, legal and, in some circumstances, social and political — so that the basis of the reasoning and therefore the outcome is transparent. This necessitates a more comprehensive but not verbose judgment writing process which, in the result, will not only be dispositive of the case but may also valuably record the legal, social and political history of the times.