Barrister gender and litigant success in the High Court of Australia

We examine the relationship between gender of the barrister and appeal outcomes on the High Court of Australia. We find that an appellant represented in oral argument by a female barrister, opposed to a respondent represented in oral argument by a male barrister, is less likely to receive a High Court justice's vote. However, we also find that the appellant disadvantage of having a female barrister present oral argument is (partially) offset in the case of liberal justices and on panels having a higher proportion of female justices. The extent to which the disadvantage is offset, and potentially turns from being a disadvantage to an advantage, depends on the degree to which the justice is liberal and the proportion of female justices on the panel.

本文探讨律师性别与诉讼结果之间的关系。我们发现这个过程并不对称。如果是由女律师上诉,而辩方是一个或一个以上男性律师,那么性别就是一个因素。不过并不存在相反的情况。我们具体发现,如果诉方是一个女律师,辩方为一男律师,诉方就不大可能获得最高法官的赞同。不过,我们还发现,如果法官具有自由主义精神,如果法官团的女性比例较高,那么女律师的不利情形就有可能被（部分地）抵消。被抵消的程度取决于法官自由精神的强弱,和法官团女性比例的大小。     

The High Court of Australia and political science: A revised historiography and new research agenda

The judiciary has not been the subject of sustained scrutiny within the political science discipline. The High Court plays a central role in the Australian political system, however, and the exercise of judicial power has far reaching consequences for the legislative and executive branches of government. This article presents a historiography of the study of the High Court by political scientists, using Helen Irving's ‘The Constitution and the judiciary’ as a foil. In order to foster cross-disciplinary study and research within the political science discipline, this article concludes by setting out a new research agenda for the future study of the High Court and the law by political scientists. This research agenda provides new insights into (among other topics) how judges exercise power and the changing relationship between the judiciary and the legislative and executive branches.

在政治学里,司法并不一直是审视的对象。不过,高等法院在澳大利亚的政治体系内扮演了关键的角色,司法权力对于立法和行政部门有着深远的影响。本文将政治学者对高等法院的研究做了历史的梳理,采用了海伦厄万的“宪法和司法”理论为参照。本文为将来政治学者研究高等法院及法律提出了新的研究课题,希望以此促进跨学科以及政治学科的研究。这些课题探讨法官如何行使权力,探讨司法与立法以及行政部门之间变动不居的关系。     

The role of attitudinal,institutional and environmental factors in explaining variations in the dissent rate on the High Court of Australia

This paper examines the role of attitudinal, institutional and environmental factors in explaining the dissent rate on the High Court of Australia (hereafter High Court) using data for the period 1904–2001. The paper's main conclusion is that the majority of attitudinal and institutional factors tested are important predictors of variation in the dissent rate while the urbanisation rate, which is used to measure socio-political complexity, has no statistically significant effect on the High Court's dissent rate.     

High Court Review 2002: The Least Dangerous Branch

The article provides a general political review of recent High Court decisions and explores the extent to which the judiciary can be said to be the 'least dangerous branch'. By examining recent events such as the 'Kirby incident', as well as the important judgments handed down by the High Court concerning Native Title, IVF and the Web, it seeks to delineate the influence and changing role of the High Court in Australian politics and constitutionalism. This is the Australian Journal of Political Science 's second annual review of the Australian High Court from a political-science perspective.     

High Court Review 2001: Politics,Legalism and the Gleeson Court

This article provides a general political review of recent High Court decisions that have significant implications for Australian constitutionalism. In examining the Court's judgments on issues such as cross-vesting schemes, immigration and Native Title, it seeks to articulate major themes in the Court's jurisprudence and delineate the important and changing role of the High Court in Australian politics. The article is the first in what this journal intends to be an annual review of the High Court from a political-science perspective.     

Historical Consensual Norms in the High Court

There is a substantial political-science literature that discusses the notion of consensual norms in the US Supreme Court. Most of this literature assumes that consensual norms exist, rather than proving their existence. Caldeira and Zorn ( American Journal of Political Science 42: 874-902, 1998) use the method of cointegration developed in econometric time-series analysis to prove the existence of a single consensual norm in the US Supreme Court. This study applies cointegration analysis to historical time-series data on dissenting and single judgments to examine whether there is a single consensual norm in the High Court of Australia. The study finds that a single consensual norm does not underlie decision making in the High Court. This result is explained on the basis that the institutions underpinning decision making and the approach to decision making are different between the Australian High Court and the US Supreme Court.     

High Court review 2003: the centenary year

2003 marked the Centenary year of the High Court, an anniversary which provides an opportunity to revisit debates about its role in the Australian system of government. The first section of this article canvasses debates around this question, culminating in a consideration of the High Court's ‘new politics’. This sets the framework for an examination of events in 2003 from the perspective of the interaction between the judicial and other branches of government, in particular the executive. The article analyses the implications of executive interventions in relation to the judiciary, as well as important cases brought before the High Court. It argues that conflict between the executive and judicial branches is only likely to increase where contradictions of purpose arise between international legal norms and obligations, the rule of law and domestic policy objectives. This article is the third in a series of reviews of the High Court from a political‐science perspective published in the Australian Journal of Political Science.     

Thick Decisions: Expertise,Advocacy and Reasonableness in the Federal Court of Australia

Drawing from the litigation around the Hindmarsh Island Bridge (especially Chapman v Luminis Pty Ltd 2001) this article provides an analysis of judicial responses to anthropological expertise. Sensitive to the institutional responsibilities of judges, as well as rules of evidence, procedures and legal causes of action, it examines the strategic representation and appropriation of anthropological knowledge and practice. In exploring the relations between law and expertise the article illustrates how their combination shapes outcomes. In the process it explains how the judge could have produced a range of (in)consistent outcomes through the modulation of legal categories and their relations with prevalent images of anthropological expertise. This analysis positions the article to critically reflect on some of the implications for anthropologists working in and around legal or quasi‐legal settings as well as those commenting on that participation.     

The Other Supreme Court

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High court review 2005: The manifestation of separation of powers in Australia

In 2005 questions were raised in public debate regarding the scope, meaning and manifestation of the constitutional separation of powers and the role of the High Court in interpreting these. In particular, the issue of the efficacy of checks and balances within the system of government against potential abuses of executive powers was raised, due to the dominance of the legislature by the executive for the first time in 24 years. This Review argues that while the High Court staunchly defended its independence and the role of the judiciary in a division of powers, it demonstrated a simultaneous reluctance to curb executive powers. This has implications for the manifestation of separation of powers in the Australian context, both in terms of its philosophical foundations and in so far as it signals a trend away from the likely realisation of public expectations of its role as expressed in appeals made to it.     

High Court Review 2004: Limits on the Judicial Protection of Rights

The High Court's role of judicial review has often been examined for its impact on rights protection, an area of particular interest in Australia due to the historical lack of an explicit bill of rights in either statutory or constitutional form. In 2004 rights issues were presented in particularly stark relief in several key cases, demonstrating the difficulties of the role of judicial review in the Australian constitutional framework. The cases analysed here produce compelling evidence of the limitations of relying on judicial review for rights protection within the Australian system of government. They demonstrate that in the absence of a clearer framework for the protection of rights the judiciary can uphold unambiguous decisions of the legislature enshrined in statute, even where and when those provisions are considered to override the rule of law, international standards and human rights principles.