Addressing ‘Loss of Identity’ in the Joint Judgment: Searching for ‘The Individual Judge’ in the Joint Judgments of the Mason Court

Abstract

There has been a spate of recent articles by current, and former, judges in Australia debating the relative merits of joint and separate judgments.[footnote* See, eg, Justice Dyson Heydon, ‘Threats to Judicial Independence: The Enemy Within’ (2013) 129 Law Quarterly Review 205; Sir Anthony Mason, ‘Reflections on the High Court: Its Judges and Judgments’ (2013) 37 Australian Bar Review 102; Peter Heerey, ‘The Judicial Herd: Seduced by Suave Glittering Phrases?’ (2013) 87 Australian Law Journal 460; Justice Stephen Gageler, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189; Justice Susan Kiefel, ‘The Individual Judge’ (2014) 88 Australian Law Journal 554. For a summary of the alternative views expressed in these offerings see Andrew Lynch, ‘Keep Your Distance: Independence, Individualism and Decision-Making on Multi Member Courts’ in Rebecca Ananian-Welsh and Jonathan Crowe (eds), Judicial Independence in Australia – Contemporary Challenges, Future Directions (Federation Press, 2016) 156.] One of the arguments against joint judgments is that they entail the loss of individual voice and due recognition for the development of the law.