10 - Values and Judicial Difference in the High Court

Summary

The publication of a dissenting judgment is overt evidence of judicial disagreement and judicial difference. This chapter starts to explore the factors that underpin this judicial difference. Drawing on a method of content analysis of legal judgments grounded in theories and techniques from psychology, this chapter highlights the values that underpin decision making and disagreement in the High Court of Australia. The value analysis provides an insight into division in the High Court reframing the discussion of dissent from differences in understandings of the law to differences in the values espoused and affirmed by the individual decision maker. Rather than a binary decision between one outcome and another, value analysis of the judgments frames judicial decision-making as a nuanced balancing of competing value(s) by the individual Justices. In doing so, the chapter presents a value-decision paradigm with differential patterns of values expression associated with opposing positions in hard cases. Value expression provides an element of consistency in decision making across these difficult cases, but the analysis of values also highlights the complex nature of the High Court decision-making process and the many factors that may influence the final outcome.