Why the EV decision is a bad sign for High Court
In the electric vehicle case, there were five different judgements from the seven justices. It suggests retiring Chief Justice Susan Kiefel’s push for judges to work more closely together might be on the rocks.
It looks like it’s back to the bad old days for the High Court.
The decision in Vanderstock v Victoria – the electric vehicles tax case – suggests the push by Chief Justice Susan Kiefel to have judges work more closely together might be on the rocks.
It took the court nine months to deliver a verdict – it’s normally around four months – and there were five judgments from the seven justices.
The current High Court bench: (from left) Jacqueline Gleeson, James Edelman, Stephen Gageler, Chief Justice Susan Kiefel, Michelle Gordon, Simon Steward and Jayne Jagot.
There was also a judicial dummy spit for the ages by James Edelman, who devoted 293 paragraphs – and 330 footnotes – to telling the majority they were “wrong”.
In total, there were 951 paragraphs over 393 pages and 132,339 words, with 1979 footnotes. What they are arguing over – Section 90 in the Constitution – is two paragraphs long with 117 words.
All of this to explain the meaning of the word “excise”, and whether it captures a road-user charge imposed on low-emission vehicles.
After Kiefel assumed the top job in 2017, she wanted to reduce the number of judgments and provide a clear majority opinion. This, she said, required a judge “to think institutionally rather than individualistically”.
Justice Virginia Bell and Justice Pat Keane were on the same page, and they formed a solid core of decision-making until Bell left in 2021.
The only real blip was Love v The Commonwealth, when the court’s 4-3 decision meant Indigenous Australians could not be regarded as “aliens” under the Constitution. There were seven separate judgments and no clear ratio.
With Kiefel retiring next month, the common view is that there isn’t anyone left who is on the same page.
Incoming chief justice Stephen Gageler has always had an individualistic streak, so its unlikely he would press the issue.
Still, Gageler joined Kiefel (and Jacqueline Gleeson) in the only joint judgment in Vanderstock. Jagot was the other majority judge, but wrote her own opinion.
At the farewell ceremony for Kiefel on Monday, Attorney-General Mark Dreyfus said her legacy as chief justice “includes the promotion of greater clarity, confidence and consistency in the law”.
“Under your leadership, the court has strived to speak with one voice where appropriate,” he said.
Kiefel said she was “unable” to let the occasion pass without again repeating her preference for fewer judgments.
“I was especially proud, during my time as chief justice, when the court was able to speak with one voice in some difficult and important matters despite some colleagues having held different views in the past.”
That final appeal looks like being dismissed.
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