The Consensual Norm on the High Court of Australia: 1904-2001

Abstract

This article applies cointegration and error-correction testing to re-examine Smyth’s (2002) conclusion that there is no consensual norm on the High Court of Australia (High Court). While Smyth (2002) concluded there was no consensual norm on the High Court using data up to 1975, we find that dissenting opinions and concurring opinions on the High Court are cointegrated once Smyth’s (2002) dataset is updated to 2001. In Smyth (2002) it was suggested that a consensual norm never emerged on the High Court because the institutional arrangements were hostile to building consensus. This entails defining “consensual norm” to mean a norm where there is a high level of consensus. But, this interpretation of how the term “consensual norm” was used in Caldeira and Zorn (1998) is incorrect. Instead Caldeira and Zorn (1998) use the term consensual norm to refer to a prevailing norm where there is some level of consensus, which could be either high or low. We offer an explanation for our findings in this article which is consistent with this reading of Caldeira and Zorn (1998). In light of the long tradition of seriatim opinion writing on the High Court, we interpret our findings as being consistent with the existence of a low consensus equilibrium, at least relative to the US Supreme Court before the 1940s.