Great Australian dissents / edited by Andrew Lynch.

Cambridge : Cambridge University Press, 2016.

1st edition

87470

Dissenting opinions -- Australia.

Judicial opinions -- Australia.

"When judges disagree, those in the minority write a dissenting opinion. This book considers the great dissents in Australian law. Their worth may derive from numerous factors, including their rhetorical force as a piece of legal reasoning or emotive power as a judicial lament for the 'error' into which the majority has fallen; the general importance of the issue at stake; as a challenge to the orthodoxy; and, sometimes, the subsequent recognition of a dissenting opinion's correctness and its ultimate vindication. On some occasions, all these features may be strongly present, on others only some. Through a diverse selection of memorable dissenting opinions, this book illuminates the topic of judicial disagreement more generally - not only through examples of instances when minority opinions have been distinctly valuable, but by drawing out a richer understanding of the attributes and circumstances which lead some dissents to become iconic, while so many lie forgotten. The first book on dissenting opinions in Australian courts." - Publisher's website. "What makes a dissenting judgment 'great'? This is a question which, outside of the United States, has received scant scholarly attention. Through a consideration of 17 Australian dissenting judgments, this book explores the questions of when and how has dissent really mattered. The contributing authors were asked to nominate dissents which they believed merited inclusion in the collection, but were - deliberately - not given any pre-determined criteria for that purpose. In each chapter the authors seek to put their chosen dissent into context and argue for its greatness. Lynch seeks to draw out several themes from the collection. The book eschews a romantic view which sees soaring rhetoric and radicalism as essential features of a great dissent. Further, Lynch argues it is not only the (rare) dissent that is ultimately vindicated by a subsequent adoption that can claim 'greatness'. Instead, he argues, dissents can be great where they prevent an unquestioned hegemony of the dominant view. In doing so, although the dissent itself may never be adopted, they encourage either a more robust justification of the current view or the further development of the law. This is an interesting and accessible book, canvassing over a century of Australian jurisprudence. Readers will no doubt question whether all the dissents included in the book deserve the epithet 'great'. (Is Latham CJ's dissent in the Communist Party Case 'great' simply because it underscores the correctness of the majority's view?) But that is the very debate which this book seeks to advance." - James O'Regan.

Includes bibliographical references and index.

9781107158535

xxvi, 366 p. ; 24 cm