Introduction What Makes a Dissent Greatt?

Abstract

The delivery of dissenting opinions is such a familiar phenomenon of appellate court decision-making in common law systems as to often go unremarked. Outside the United States of America, in which judicial dissent has long been viewed with a pronounced romanticism and has amassed a vast literature, direct scholarly attention has been limited. This is certainly true in Australia. Additionally, what judicial and academic discussion there is on the topic typically falls into one of two camps. In the first are contributions that engage in a fairly abstract weighing of the benefits of judicial dissent against its costs to the institutional authority and efficiency of the courts; these reflections are predominantly sourced from the judiciary. In the second is academic research with an empirical focus in which determining the frequency of judicial disagreement and the identification of regular coalitions and dissenters on the bench feature as dominant objectives. Despite the value of these different contributions, an important gap in our understanding of this topic remains: specifically, when and how has dissent really mattered? A full appreciation of the practice of judges writing minority opinions – what motivates them to do so, the adoption of a particular tone or style, and the impact of disagreement upon the work and standing of the court and the later development of the law – can only be gained through a substantive discussion about the value and significance of particular examples. This book aims to fill this gap by presenting a diverse collection of such opinions in which the circumstances and consequences of judicial dissent are explored in detail.At the same time, Great Australian Dissents is, as its title unambiguously indicates, a celebration of the genre. The contributing authors were invited to nominate a minority opinion they believe merits inclusion in the pantheon – but pointedly, they were not offered any pre-determined criteria for that purpose. Many of the dissents here will be ones widely anticipated by those who have studied and worked in the law, some may surprise, and the inclusion of others again may be hotly contested – just as they were at the two day workshop in which the chapters of this book were initially presented and discussed. The common purpose of the 21 authors across the 17 chapters that follow is to justify their selection to the reader. In doing so, they place the dissenting opinion in context so that its novelty and impact may be appreciated against the majority’s approach and the existing law. The authors detail the opinion’s immediate attractions and enduring appeal, if not vindication. In this way, the chapters of the book work in dialogue with each other to illuminate the topic of dissent more generally – not simply by providing instances when minority opinions have been distinctly valuable, but by also constructing a holistic understanding of those attributes and circumstances which lead some dissents to stand out as significant, even to become iconic, while so many lie forgotten. The purpose of this chapter is to introduce this highly varied collection and also the central themes that emerge from it – the many different ways in which a minority opinion may, despite losing the day when the case was decided, nevertheless make some claim to greatness.