Most citizens, and many lawyers, may not know that a new cause of action for serious invasions of privacy became law in November 2024 and started operation in June 2025. The mainstream media barely reported this reform. If it had, it would have had to tell readers and listeners that the new law exempts the media from its operation under a broad “journalistic materials” exemption.

This article provides an overview of the new federal law and sources to better understand its benefits and its limitations.

Where did the law come from?

Torts that protect privacy have always been with us: for example, trespass to land, private nuisance and battery. But those torts left large gaps in protecting individuals from intrusion upon their seclusion and against the misuse of private information. Specific privacy causes of action developed in the United Kingdom, New Zealand and Canada to fill those gaps. In Australia, the development of new privacy torts was left open by the High Court in 2001 in Lenah Game Meats.[1] But in the following decades, only a few inferior court judges in Australia recognised new causes of action for serious invasions of privacy, and their decisions were not appealed. Superior courts adapted the action for breach of confidence, finding it unnecessary to decide if a new cause of action should be recognised for misuse of private information. In Smethurst,[2] the plaintiffs, a journalist and a media organisation – presumably advisedly – did not rely on a cause of action for invasion of privacy when the opportunity arose over an unlawful police search of a journalist’s home and the seizure of data from her phone. The media organisation that ran the challenge to the legality of the raid may not have wanted the High Court to find such a cause of action existed.

The absence in Australia of any authoritative appellate court endorsement of new privacy torts is one reason that Australia has belatedly gone down the legislative path. The new law is based on the Australian Law Reform Commission’s 2014 report Serious Invasions of Privacy in the Digital Era. That report sat on the shelf for 10 years, until former Attorney-General Mark Dreyfus KC announced its adoption in principle. A hasty legislative process in late 2024 allowed the law to pass before the end of the Albanese government’s first term. During that process, media interests successfully made submissions to be exempt from the law. The government agreed to this over the objections of experts in the field, including Professor Barbara McDonald (who led the ALRC project in 2014) and Professor David Rolph. 

The law which establishes a cause of action for serious invasions of privacy is found in a new schedule 2 to the Privacy Act 1988 (Cth) (Privacy Act). The law recognises in cl 1 that:

• there is a public interest in protecting privacy; and
• the public interest in protecting privacy is balanced with other public interests.

Key features of the cause of action

Under cl 7(1), an individual has a cause of action in tort against another person if:

“(a) the defendant invaded the plaintiff’s privacy by doing one or both of the following:

(i) intruding upon the plaintiff’s seclusion;

(ii) misusing information that relates to the plaintiff; and

(b) a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances; and

(c) the invasion of privacy was intentional or reckless;

(d) the invasion of privacy was serious; and

(e) the public interest in the plaintiff’s privacy outweighed any countervailing public interest.”

These elements are explained in the following provisions. Also, concepts such as “a reasonable expectation of privacy” and the process by which privacy interests are weighed against competing interests like freedom of expression are the subject of a large body of caselaw in the UK, where courts developed a cause of action for misuse of private information more than 20 years ago. Australian courts are likely to draw on that caselaw.

Judges in common law jurisdictions such as the UK, Canada and New Zealand have developed either a seclusion tort or a private information tort, and sometimes both. Each cause of action has a common element: a reasonable expectation of privacy and a second stage inquiry (or sometimes a defence) that protects competing rights and interests, such as freedom of expression.

Rather than create a public interest or similar defence that the defendant must prove, the Australian statutory tort adopts the UK approach of requiring the claimant to prove both a reasonable expectation of privacy and that privacy interests should prevail over competing interests.

A key difference between the UK tort and the Australian statutory tort is that the Australian law has an explicit fault element:  intention or recklessness. The statutory tort is not available for a careless invasion of privacy, such as where the holder of private information negligently permits it to be stolen or hacked. The law of negligence or other laws address that kind of case.

Two types of invasion of privacy

The ALRC favoured the creation of a single cause of action to cater for either or both kinds of invasion of privacy, and this model was adopted. An individual’s privacy may be invaded by doing one or both of the following:

(a) intruding upon seclusion, such as by physically intruding into the plaintiff’s private space or by watching, listening or recording the plaintiff’s private activities or private affairs; or

(b) misusing private information, such as by collecting or disclosing private information about the plaintiff.

Clause 6 defines the terms “intruding upon the seclusion” and “misusing information”. 

One can have an intrusion upon seclusion without the collection of information, for example where a stalker observes a familiar and static private place. One can have the misuse of private information that is not gathered by an intrusion upon seclusion.  Factually, an intrusion upon seclusion and a misuse of the information thereby obtained may overlap. Kaye v Robertson[3] is a good example of an episode of both physical intrusion by journalists into the privacy of a seriously injured hospital patient, and misuse of the information thereby obtained. Many other cases involve both intrusion upon seclusion and misuse of information.[4] 

A reasonable expectation of privacy

Clause 7(5) does not limit the matters that may be considered in determining whether a person in the position of the plaintiff would have had a reasonable expectation of privacy in all of the circumstances. The court may consider the following:

“(a) the means, including the use of any device or technology, used to invade the plaintiff’s privacy;

(b) the purpose of the invasion of privacy;

(c) attributes of the plaintiff including the plaintiff’s age, occupation or cultural background;

(d) the conduct of the plaintiff, including whether the plaintiff invited publicity or manifested a desire for privacy;

(e) if the defendant invaded the plaintiff’s privacy by intruding upon the plaintiff’s seclusion—the place where the intrusion occurred;

(f) if the defendant invaded the plaintiff’s privacy by misusing information that relates to the plaintiff—the following:

(i) the nature of the information, including whether the information related to intimate or family matters, health or medical matters or financial matters;

(ii) how the information was held or communicated by the plaintiff;

(iii) whether and to what extent the information was already in the public domain.”

These considerations call for an objective consideration of whether the claimant had a reasonable expectation of privacy protection. The element is not satisfied by the claimant’s subjective expectation. The considerations resemble the kind of factors developed in the UK.[5]

Fault

As noted, the invasion must be “intentional or reckless” with “reckless” having the same meaning as in the Criminal Code (Cth). The ALRC recommended this form of fault element. 

The tort would not be actionable where there is merely an intention to do an act that has the consequence of invading a person’s privacy.[6] The ALRC clarified that its fault requirement does not mean that the defendant must have intended to commit a legal wrong or intended to fulfil the other ingredients for liability for the tort. Instead, it means that “the defendant needs to have been aware of the facts from which it can be objectively assessed whether or not the plaintiff had a reasonable expectation of privacy and of the facts that an intrusion or disclosure would (or in the case of recklessness, may) occur”.[7] This fault element is easily satisfied in an intrusion case like C v Holland[8] (secret filming of a person showering) or surreptitiously prying into someone’s bank account.[9] It would not be satisfied by the taking of a photograph of a public event, which, without the knowledge of the photographer, captures a private act in the background, since there would not be an intentional or reckless intrusion into the privacy of the affected individual.

Associate Professor Witzleb has argued that this fault requirement sets the bar too high and that a negligence standard would better align the privacy tort with other torts that protect dignitary interests and with the Privacy Act.[10]

Existing causes of action that do not have as demanding a fault element as the new statutory tort, or which do not balance protected interests such as property rights against public interests like freedom of speech, will remain attractive to some claimants.

Seriousness

The invasion must be “serious” and cl 7(6) identifies some considerations in that regard:

“(a) the degree of any offence, distress or harm to dignity that the invasion of privacy was likely to cause to a person of ordinary sensibilities in the position of the plaintiff;

(b) whether the defendant knew or ought to have known that the invasion of privacy was likely to offend, distress or harm the dignity of the plaintiff;

(c) if the invasion of privacy was intentional—whether the defendant was motivated by malice.”

Professors McDonald and Rolph note that this element relates to the invasion itself, rather than any harm that may flow from it, although obviously the two are linked.[11] They explain that it is not just a matter of excluding trivial claims that might in some cases have been struck out as an abuse of process, but of ‘reserving the court’s time for serious matters which go beyond what people should be expected to tolerate in a civil society’.[12]

The public interest in the claimant’s privacy must outweigh any countervailing public interest

This is a key provision that protects a range of interests that under cl 7(3) include:

“(a) freedom of expression, including political communication and artistic expression;

(b) freedom of the media;

(c) the proper administration of government;

(d) open justice;

(e) public health and safety;

(f) national security;

(g) the prevention and detection of crime and fraud.”

Many think that imposing the onus on a claimant to prove that privacy interests outweigh other interests like freedom of expression, rather than creating a public interest defence for the defendant to prove, provided appropriate protection for the media, making the broad exemption for “journalistic materials” in cl 15 unnecessary.

UK courts had developed a similar two stage scheme by which the claimant must first establish a reasonable expectation of privacy, after which the court moves to a second stage of weighing that privacy interest against other competing interests, including freedom of expression under Article 10. 

Neither the privacy right conferred by Article 8 nor the right conferred by Article 10 (freedom of expression) has precedence over the other.  The resolution of the competition between rights is fact-specific. Lady Hale in Campbell explained that the court looks at “the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applies a proportionality test to each”.[13] Lord Steyn in Re S (A Child) distilled the approach as follows:[14]

“First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.”

In HRH The Duchess of Sussex v Associated Newspapers Ltd,[15]Warby J (as Warby LJ then was) described the second stage inquiry under the misuse of private information tort:

“At stage two, the question is whether in all the circumstances the privacy rights of the claimant must yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences …. The competing rights are both qualified, and neither has precedence as such. The conflict is not to be resolved mechanically, on the basis of rival generalities. The Court must focus intensely on the comparative importance of the specific rights being claimed in the particular case; assess the justifications for interfering with each right; and balance them, applying a proportionality test. The Court must have regard to the extent to which it is or would be in the public interest for the material to be published. The decisive factor at this stage is an assessment of the contribution which the publication of the relevant information would make to a debate of general interest. Other factors to be weighed in the balance are the subject-matter, how well-known the claimant is, the claimant’s prior conduct, and editorial latitude.”

In that case Warby J stated:

“Articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest in society.”[16] 

Defences

Clause 8 of Sch 2 contains several defences:  the invasion was required or authorised by an Australian law or court or tribunal; consent; a reasonable belief of necessity to prevent a serious threat to life, health or safety; the invasion was incidental to defence of persons or property and proportionate, necessary and reasonable. Defences drawn from defamation law like absolute privilege, publication of public documents and fair reports of public proceedings also apply.

The invasion is actionable without proof of damage

Unlike negligence and many other actions that require proof of actual loss, and that do not compensate for distress, the statutory tort is actionable without proof of damage.[17]

Damages

Under UK law, compensation for the unlawful misuse of private information is available for the infringement of the right itself, namely the loss of control of information, as well as any distress.[18] Substantial damages may be awarded for the infringement of the right to control private information itself, not simply for consequential injury like distress. A controversial and unresolved issue in the UK is whether compensation is available for reputational harm. The caselaw on that point conflicts. In Pacini v Dow Jones & Co Inc[19] the law on the recoverability of damages for injury to reputation in non-defamation claims was said to be ‘uncertain and in flux’, even where the information is said to be false and defamatory.  That issue was left unresolved by the ALRC.

Clause 11 of  Sch 2 to the Australian law provides:

“Damages

(1)  Subject to this clause, the court may award damages to the plaintiff.

(2)  The court must not award aggravated damages.

(3)  The court may award damages for emotional distress.

(4)  The court may award exemplary or punitive damages in exceptional circumstances.

(5)  The sum of:

(a) any damages awarded for non‑economic loss; and

(b) any exemplary or punitive damages;

must not exceed the greater of:

(c) $478,550; and

(d) the maximum amount of damages for non‑economic loss that may be awarded in defamation proceedings under an Australian law.

(6) Without limiting the matters that the court may consider in determining the amount of damages, the court may consider the following:

(a) whether the defendant apologised to the plaintiff;

(b) if the defendant invaded the plaintiff’s privacy by publishing information that relates to the plaintiff—whether the defendant published a correction;

(c) whether the plaintiff received or agreed to receive compensation in relation to the invasion of privacy;

(d) whether the plaintiff or the defendant took reasonable steps to settle the dispute;

(e) whether the defendant engaged in conduct after the invasion of privacy, including during the proceedings, that was unreasonable and subjected the plaintiff to particular or additional embarrassment, harm, distress or humiliation.”

The command in cl 11(2) that the court must not award aggravated damages is curious, and hard to align with cl 11(6)(e) which contemplates regard to conduct that would justify such an award. The intent of cl 11(2) may be to reflect the ALRC recommendation that the court may not award a “separate sum” as aggravated damages. If this is the intent, the Act should have said so. If this is the intent, it reflects a similar approach in Australian defamation law where the authorities are generally against awarding a separate amount for aggravated damages, with aggravated damages, if justified, forming part of a single award of compensatory damages.[20] Another view of cl 11(2) is that because the tort is only actionable for intentional or reckless invasions, those aggravating features will arise in every successful case, making an award of aggravated damages for the invasion itself superfluous.

Other remedies

Under cl 11, other available remedies include:

(a) an account of profits;

(b) an injunction;

(c) an order requiring the defendant to apologise to the plaintiff;

(d) a correction order;

(e) an order that any material (including copies):

(i) that is in the defendant’s possession, or that the defendant is able to retrieve; and

(ii) that was obtained or made as a result of the invasion of privacy or was misused during the course of the invasion of privacy;

be destroyed, be delivered up to the plaintiff or be dealt with as the court directs;

(f) a declaration that the defendant has seriously invaded the plaintiff’s privacy.

Minors

Schedule 2 does not apply to an invasion of privacy by a person who is under 18 years of age. This might be said to render the law ineffective to prevent or compensate for serious acts of privacy invasion by minors who intrude upon the seclusion of other minors and share intimate images and information online. Remedies for this kind of misconduct must be found elsewhere in the criminal law or other torts like the tort for intentional infliction of emotional harm.

Exemptions

The law departs from the ALRC recommendations by including:

• a broad exemption for ‘journalists’, their employers and others who are engaged by them (such as a paparazzi photographer) for ‘journalistic material’ (cl 15); and
• exemptions for law enforcement and intelligence agencies (cll 16-17). 

The journalistic materials exemption is complex and uncertain in its scope.  It includes material that ‘has the character of news’. Its interpretation is likely to trouble courts and is the subject of a further article by us.

The law enforcement and intelligence agencies exemptions apply to a range of intelligence organisations, as well as federal, state and territory law enforcement and anti-corruption bodies acting in good faith in the performance or purported performance or exercise of powers and functions. The exemption departs from the ALRC proposal which addressed the activities of those bodies by a defence of lawful authority or requirement, rather than an exemption.

Limitation period

Under cl 14(1), a proceeding under the schedule must be commenced:

“(a) if the plaintiff was under 18 years of age when the invasion of privacy occurred—before the plaintiff’s 21st birthday; or

(b) otherwise—before the earlier of:

(i) the day that is 1 year after the day on which the plaintiff became aware of the invasion of privacy; and

(ii) the day that is 3 years after the invasion of privacy occurred.”

However, the plaintiff may apply to the court for an order that, despite cl 14(1), the plaintiff may commence a proceeding before a day specified in the order. The court may make the order if the court is satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced proceedings in accordance with cl 14(1) in relation to the invasion of privacy. The day specified in the order must not be later than 6 years after the day on which the invasion of privacy occurred.

The limitation period in cl 14 is subject to the ‘single publication rule’ in cl 19 which is similar to the rule as to when time runs for a defamation action for multiple, successive publications of the same material.

Saving of other laws and remedies

Clause 21 explains that the new statutory cause of action “is not intended to limit the concurrent operation of any law, whether written or unwritten, of a State or a Territory”.  Therefore, existing actions may be used, and may provide benefits for claimants over the new statutory cause of action.  For example, a claim in trespass or private nuisance, which is based on a property right rather than an individual’s right to privacy, may provide incidental privacy protection against intrusion upon seclusion, and avoid the need to prove the elements of a specific privacy tort.[21]  However, someone whose privacy is invaded and who lacks title to sue for trespass or private nuisance may be well-advised to bring an action under the new statutory tort.

Existing causes of action, while leaving gaps in privacy protection, remain useful in many circumstances.  For example, in The Game Meats of Australia v Farm Transparency Ltd,[22] the Full Federal Court restrained publication of material that was obtained through trespass, reasoning that the trespasser held copyright of the material on a constructive trust for the claimant. 

Clause 21 means that existing causes of action for breach of confidence remain available for misuse of private information by media interests that may enjoy an exemption from the new statutory tort. An interesting question is whether cl 21 will allow Australian courts to further develop that cause of action into a tort, as occurred in the UK.

The statutory cause of action is for individuals, not corporations

The statutory cause of action is available to an individual, not non-natural persons like corporations. It is intended to implement Australia’s international obligations in relation to privacy, including Article 17 of the International Convention on Civil and Political Rights. This is consistent with privacy torts that have developed in other jurisdictions, which are based on human rights, and have their foundation in human dignity and personal autonomy.[23]

Corporations that are the subject of ‘privacy’ invasions (or more precisely infringement of their property or economic rights)[24] must seek a remedy under the general law or under legislation.

Schedule 2 sits outside the Privacy Act regulatory regime

The statutory tort for serious invasions of privacy is distinct from the regulatory regime established by the Privacy Actwhich requires compliance with the Australian Privacy Principles and is overseen by a regulator. The new cause of action is intended to operate similarly to other torts and be developed through jurisprudence. The Explanatory Memorandum explains that “it is intended that courts would draw on key concepts from other torts, including privacy torts in other jurisdictions”.[25]

Clause 2 states that Sch 2 is intended to be read and construed separately from the rest of the Act. Therefore, expressions and provisions in other parts of the Privacy Act are to be disregarded when determining the meaning of expressions used in Sch 2. Section 94A also states that Sch 2 is to be disregarded in determining the meaning of other parts of the Privacy Act. Therefore, Sch 2 should be read and construed as if it were a free-standing piece of legislation.  It is housed in the Privacy Actfor convenience because it was introduced along with a raft of amendments to that Act by the Privacy and Other Legislation Amendment Act 2024 (Cth).

Conclusion

The new statutory tort is long-overdue.  One of its main virtues is that it defines the cause of action, and expressly balances privacy interests against competing interests.  The statutory tort is more certain and comprehensive than a judge-made cause of action that is developed and defined slowly over the decades as cases haphazardly reach appeal courts. 

The statutory cause of action did not appear out of nowhere.  The ALRC report will be an important reference about its intended operation.  Caselaw from other jurisdictions, particularly from the UK, upon which the ALRC drew, will be an essential source for lawyers who will be asked to advise about the law’s meaning and application.

[1] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199.

[2] Smethurst v The Commissioner of Police [2020] HCA 14,(2020) 272 CLR 177.

[3] [1990] EWCA Civ 21, [1991] FSR 62.

[4] The Explanatory Memorandum to the Privacy and Other Legislation Amendment Bill 2024 (Cth) at[389] gives the example of ‘hacking into an individual’s private electronic device and disseminating intimate photographs’.

[5] Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, [2009] Ch 48 at [36].

[6] Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era,Report No 123 (2014) at [7.31].

[7] Ibid at [7.35].

[8] [2012] NZHC 2155, [2012] 3 NZLR 672.

[9] Jones v Tsinge [2011] ONCA 32.

[10] Witzleb, ‘The Case for Negligence as the Mental Element of an Australian Statutory Privacy Tort’ (2023) 29 Tort L Rev 3

[11] McDonald and Rolph, ‘A new statutory tort for serious invasions of privacy’ (2025) 99 ALJ 351, 355.

[12] Ibid.

[13] Campbell v MGN Ltd [2004] UKHL 22, [2004] AC 457 at [140] (“Campbell”).

[14] [2004] UKHL 47, [2005] 1 AC 593 at [17] (emphasis in original).

[15] [2021] EWHC 273 (Ch) at [30] (emphasis added).

[16] Ibid at [103].

[17] Schedule 2, cl 7(2).

[18] Gulati v Mirror Group Newspapers Ltd. [2015] EWCA Civ 1291, [2015] QB 149 at [45].

[19] [2024] EWHC 1709 (KB) at [107].

[20] Wagner v Nine Network Australia Ltd [2019] QSC 284 at [196] – [205].

[21] As for private nuisance, see Fearn v Board of Trustees of the Tate Gallery [2024] AC 1 [111]-[113], [204]; Jeevan Hariharan, ‘The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery’ (2023) 87 MLR 697, 709-714.

[22] [2025] FCAFC 104.

[23] Campbell v MGN Ltd [2004] UKSC 22, [2004] 2 AC 457[50]-[51],Nicole Moreham and Adam Speker (eds), The Law of Privacy and The Media (4th edn, OUP 2024), [2.53]-[2.71].

[24] As in Lenah Game Meats (n 1) or The Game Meat Company of Australia (n 21).

[25] Explanatory Memorandum, Privacy and Other Legislation Amendment Bill 2024 (Cth) at[358]

Speech delivered by the Honourable Peter Applegarth AM KC at the Queensland Magistrates’ State Conference 2024, Friday 24 May 2024.

Non-publication and suppression orders

Final Address – Bar Practice Course 81 – 2 May 2024

Congratulations on completing the Bar Practice Course. You are about to be released, like someone I sentence who has served sufficient time in custody and is given today as a parole release date. I try to explain things that will help them: a GP mental health plan, a parenting course, voluntary work as a precursor to paid employment, and some other tips. I know that most of what I am saying is not being absorbed because all the person can think about is getting out and going home. 

Tonight is not an evening for instructions about pleadings, ethics, or how to issue frame in written and oral submissions. I wrote a paper[1] on that last topic and I commend it to you. You already have been told by others that honesty, candour, and your higher duty to the administration of justice are more important than a fleeting advantage by cutting some ethical corner and misleading a court by omission.  Your reputation is hard-earned:  decades of toil in the making, culminating in this intense course.  All of that can be lost in a moment of misjudgement.

Realize that the best lawyers were not born into legal dynasties.  Chief Justice Susan Kiefel went to Sandgate High and left school at 15 to become a secretary.  Chief Justice Stephen Gageler went to a one-teacher school in the Hunter Valley and was introduced to law by a hobby farmer who was a barrister.  Lord Atkin’s father was not Lord Atkin. He was a journalist and progressive politician, who was training to be a barrister in Brisbane when he died aged 30. His eldest son, Dick Atkin, then aged 4, had been born around the corner in Tank Street. Dick’s widowed mother and grandparents brought him up in Wales.  His success came from scholarships and hard work.  When he wanted to start at the London Bar, he had no connections. He walked around the courts and saw who the best barristers were. He asked one of the best, Edward Scrutton, to be his pupil master. Approaching the formidable Scrutton must have taken courage. Good mentors have been invaluable to most of us in life. So seek out good mentors.

Atkin narrowly survived at the junior Bar.  In his first few years, he had two loyal briefing solicitors: one of them was a young solicitor called Norman Herbert Smith whose small firm is now the global firm, Herbert Smith Freehills.  From little things big things grow.

Luck plays a part. I came to the Bar in 1986 when I had the opportunity to go into good chambers. I was with that group for 22 happy years. You may not be so lucky and live a nomadic existence. Be brave, and politely offer to tag along to court with more senior barristers. Be seen. And be seen to do good work.  That requires preparation and knowing what judges want.

Judges love to see brilliance. But we want assistance. That was one reason I wrote the paper on issue framing in written and oral submissions.  Well-prepared junior barristers often try to impress me in the first few minutes by telling me all the details of the case and showing that they have read lots of cases.  Feel free to impress me with your knowledge and tell me the details.  Just don’t do it in the first two minutes.

At the start I simply want to know who did what to who; what the issue is; what the rule is; and why you say you should win. Do not start with a lot of dates and detail that I cannot absorb.  Try not to start: “This is an application under section 38(b)(v) of the Dog Act”.  First tell me: “The defendant’s dog bit a child”. I don’t need to know the dog’s name or the child’s name at that point.

When I was at the junior Bar, I was amazed by the brain power of judges like Bill Pincus who seemed to be able to absorb a great deal of information, quickly process it, and get to the point. With the advent of AI, people increasingly compare judicial decision-makers with computer programs. Like IBM’s Big Blue all those years ago competing with World Champion Garry Kasparov in chess. Will machines or humans, in time, prove to be the best judicial decision-making machines?  AI, with all its embedded human biases and superior processing power, may win that race. In the meantime, you are dealing with judges with human strengths and human failings. 

In 1949, the great jurist, Jerome Frank, wrote “We must face the fact that judges are human”.

One part of being a human is what psychologists call “bounded rationality”. There is only so much information that even someone with the processing power of the late Bill Pincus can absorb in a short amount of time. Judges, Magistrates and tribunal members with crowded lists can absorb only so much information. Sometimes they have 20 cases to decide that morning.

Thinking Fast and Slow: Intuitive thinking

In 2015, I attended a seminar conducted by Professor Daniel Kahneman at the Federal Court in New York City.  Since then, I have become interested in, some might say mildly obsessed by, decision-making and cognitive biases.  Kahneman and his co-author, Amos Tversky, founded modern decision-making theory, which is behind behavioural economics.  Its insights improve many aspects of our lives, like busy doctors not misdiagnosing cases.

You may have heard of Professor Kahneman, who was awarded the Nobel Prize for Economics, without ever having taught an economics class. Tversky died before he could be jointly awarded the Nobel Prize.  Kahneman wrote a best-seller called Thinking Fast and Slow.  It is about two systems which affect our thinking:

• System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control.
• System 2 allocates attention to the effortful mental activities that demand it, including complex computations.  The operations of System 2 are often associated with the subjective experience of agency, choice, and concentration.

Kahneman writes:

“When we think of ourselves, we identify with System 2, the conscious, reasoning self that has beliefs, makes choices, and decides what to think about and what to do.”

The labels of System 1 and System 2 are widely used in psychology.  System 1 is remarkably complex and generally very good at what it does.  Kahneman describes the circumstances in which System 2 takes over, overruling the freewheeling impulses and associations of System 1.

In our daily lives, we make intuitive decisions all the time about important matters, and if we did not, we’d be dead, disabled or suffering from some kind of decisional overload or paralysis because we cannot afford to deliberate over all the decisions we have to make every day.

What risk does the person approaching me at a dark station pose to my personal safety?

My assessment depends on whether the person is a smiling, little old lady, or an angry young man.  My assessment is based on stereotypes and biases:  tattoos, age, the way the baseball hat is positioned, media portrayals of offenders, even movies I have seen.  If I take too long to deliberate, rather than run, I may get mugged.

My intuition may be wrong.  But I make my intuitive decision about risk and probabilities based on biases and stereotypes.  I’d be mad, or at least very unusual, if I didn’t.

However, when I decide a bail case, I am expected to make a more reflective assessment of risk.  Yet, implicit biases and heuristics play their part in decision-making.  Someone of a certain age, background and criminal history simply poses a statistically higher risk than someone without that profile.  And if I have just heard on the news about an offence committed by someone with that profile, or if the day before I sentenced someone with that profile for committing an offence whilst on bail, my assessment of risk is affected, and perhaps over-estimated.

System 1 relies on patterns that develop based on the individual’s experiences with the world. The individual learns over time how to distinguish between things and people, and how to discern patterns.  These help the brain process information quickly and efficiently.

By contrast, the reflective, System 2 relies on deliberation and effort to perform a task.

Naturally, experience and practice are important.  An experienced emergency doctor will be quicker at treating a gunshot wound than an average GP.  Some things require a lot of practice, like playing a top-spin, backhand passing shot in tennis, and becomes second nature, and seemingly a lot easier through experience.

But some things, like hard maths problems which cannot be done by most people in their heads, just require concentration and deliberation:  slow thinking.

While System 1 can process information on an ongoing basis, the reflective system has a limited capacity.  Thus, the brain is limited about its use of System 2: I cannot solve a hard maths problem, sing a song, and watch TV at the same time. 

Courts and tribunals with heavy caseloads, like GPs with full waiting rooms during a flu epidemic, tend to rely on the automatic retrieval of schemas or heuristics to process incoming information and engage the reflective system only when motivated to do so.

The experts refer to this reliance on schemas as recognition-primed decision making. The idea is that we develop schemas that we subsequently use to size up a situation and decide what to do.  For example, a first responder in an ambulance comes across an unconscious person at the scene of an accident and does not take 30 minutes to analyse all the potential options for action. Rather, he or she takes in information about the immediate situation and matches it to a response option that has worked well in similar situations in the ambulance officer’s past or has been engrained through training. The initial option may not have been the best option if there had been enough time to generate and analyse all possible options, but it is the best option in a time-pressured situation.

Judicial decision-makers, particularly when confronted with heavy caseloads, tend to use the same process.

Kahneman and Tversky’s insights are relevant to time-poor courts and tribunals:  the equivalent of a crowded GP clinic during the flu season.  Too many patients, not enough time, with rushed intuitive decisions based on recognition-primed patterns of thinking.  A busy doctor thinks “You look like you’ve got the same flu as my last 10 patients” – an understandable, intuitive conclusion but possibly a wrong one.

In busy court lists there is the same potential for missed diagnoses and reliance on recognition-primed patterns of thinking and stereotypes.  Not just racial or other wicked stereotypes, but stereotypes and unconscious biases that are based on experience of doing similar cases that are easily called to mind.  It’s called the availability heuristic.  Busy judicial officers may unconsciously say to themselves, “I’ve seen this case before, I know what this case is about, and I know how this case is going to end”.

There is no easy solution to this problem in the health system or in the justice system.  Your task is to help the decision-maker to avoid cognitive biases.  That starts with avoiding information overload in the first few minutes of your address or the first paragraph of your written submissions.  Keep things as simple as possible without being misleading by omission.  Spend time on your opening.

The problem of intuitive thinking is not confined to busy, lower courts and tribunals.  Senior judges in apex courts make policy decisions based on assumptions about how the way the world works.  I developed this point in an article I wrote in the US Journal of Torts Law[2] about the imposition of duties of care in tort or the creation of judge-made immunities.  Judges make assumptions about incentives and deterrent effects by assuming that certain occupations, like police or doctors, will respond or over-respond to the threat of civil liability.  They are based on hunches and biases, rather than empirical evidence. 

Heuristics

Two things that can lead to inaccurate decisions are heuristics and implicit biases.  In psychology, heuristics are simple, efficient rules which people often use to form judgments and make decisions.  They are mental shortcuts that usually involve focusing on one aspect of a complex problem and ignoring others.  These mental shortcuts ease the cognitive load of making a decision.  They include a rule of thumb, an educated guess, a guesstimate and intuitive judgments.

Heuristics are schemas that rely on only some of the information available so an individual can make a decision quickly and with little effort.

Judging is typically seen as a rational and deliberative process.  However, the emerging judicial cognition research suggests that, like other human decision-making, judging is partly an intuitive cognitive process.  Sometimes this assists in quick and efficient decision-making.  However, it can also produce systematic errors in decision-making.

Evidence that judges are susceptible to implicit biases and use heuristics comes from a series of studies by law professors Judge Andrew Wistrich, Jeffrey Rachlinski and Chris Guthrie.[3]  They explored judges’ use of five heuristics and biases:

• anchoring;
• framing – the same information presented differently (e.g., the glass is half full versus half empty);
• hindsight bias – the sense that specific outcomes were more predictable once the outcomes are known;
• representativeness heuristic – ignoring statistical base-rate information, and
• egocentric bias – overconfidence in one’s abilities.

Locally, Professor Kylie Burns from Griffith Law School has researched and written in this field. In “Judges, ‘Common Sense’ and Judicial Cognition”, she explains the availability heuristic and other ways of thinking that produce systemic errors in decision-making.[4] 

Anchoring

Kahneman and Tversky wrote about anchoring.  Judges may be influenced by anchoring:  the starting points in competing submissions about quantum in a personal injury case or submissions on sentence.  There is an inclination to think that the right answer lies in the middle of these anchoring points.  It is part of being human.  We have to try to resist anchoring by placing little weight on a submission that advances too high or too low a number.

Framing

Here is a simple example of framing.  Imagine that you go into a supermarket to buy a product. Each container is marked differently: one label has 90% fat free and the other says 10% fat.

Which one are you more likely to buy?  Each container, of course, contains the same product.

When people face a difficult decision, such as whether to undergo a medical procedure or to go to trial, the way in which the decision is framed influences the decision and people’s willingness to incur risk.  Different ways of presenting the same information prompt different emotions.  A cancer patient given statistics about the outcome of surgery and radiation might be given two descriptions of the short-term outcomes of surgery:

• The one-month survival rate is 90%
• There is a 10% mortality in the first month

The way in which such information is presented not only affects the decisions of patients, it affects the decisions of doctors.  Physicians participating in a study that Tversky and others carried out at the Harvard Medical School were given these statistics.  Surgery was much more popular in the former frame (84% of physicians chose it) than in the latter (where 50% favoured radiation).  The logical equivalence of the two descriptions is obvious, and “a reality bound decision-maker would make the same choice regardless of which version she saw”.[5]  However, we are affected by emotion and emotional words: mortality is bad, survival is good.  The statement that “the odds of survival one month after surgery are 90%” is more reassuring than the equivalent statement that “mortality within one month of surgery is 10%”. 

Think about framing when you are advising clients with poor prospects of winning at trial.  You might advise:

• You have a 90% chance of losing; or
• You have a 10% chance of winning

Incidentally, Kahneman and Tversky’s Prospect Theory explains why a plaintiff with a 90% chance of winning at trial will usually accept less than 90% of an agreed quantum to settle the case.  The thought of how they would feel if they lost (a 10% risk) is so terrible that they will take more than a 10% discount to settle.

The availability heuristic

I turn to what is called the availability heuristic.   The more easily people can call some scenario to mind – the more available it is to them – the more probable they find it to be.

Any fact or incident that was especially vivid, or recent, or common – or anything that happened to preoccupy a person – is likely to be recalled with special ease, and so be disproportionately weighed in any judgment.

A couple of years ago I spent a week in Toowoomba and each day sentenced a number of drug offenders, mostly for street-level dealing in methamphetamine.  On the Friday evening as my Associate and I drove back to Brisbane she asked me “Judge, is everyone in Toowoomba on meth?”  My immediate response was “I don’t think my Auntie Violet is”.  I first met Auntie Violet in the early 1960s when I was an infant.  Her daughters, who were distant cousins, rode ponies.  For a long time I assumed that most children in Toowoomba rode ponies.  My Associate’s over-estimation of the number of Toowoomba citizens who use meth, like my childhood over-estimation of the number of Toowoomba children who rode ponies, is what scholars describe as an availability heuristic.  The scholarship in this area can be traced to Tversky and Kahneman’s seminal 1974 article ‘Judgment under Uncertainty: Heuristics and Biases’.[6]  That article described simplifying shortcuts of intuitive thinking and explained some 20 biases. In simple terms, the availability heuristic is the process of judging frequency by the ease with which instances come to mind.

Human judgments are often based on memory.  If we do not have the necessary information to make a decision, we use information acquired in the past that we think will help us make a decision.  However, this process can lead to incorrect assumptions, for example a wrong assumption about the frequency of an event based on how many similar events are brought to mind.  Judges, like everyone else, are more likely to draw on information that can be easily called to mind.  Based on the judge’s limited experience and lack of knowledge, erroneous assumptions may be made about a group whose behaviour is under consideration, for example, the behaviour of the victims of domestic violence or childhood sexual abuse.  Also, like other people, judges may over-estimate the chance of something occurring because of their experience or exposure to media reports.  

The availability heuristic suggests that people tend to think a risk is more serious if it can be readily called to mind.  A terrorist attack in Paris or London that attracts media coverage will alter your feelings about the safety of visiting that city, and cause you to change your travel plans and go scuba diving in Fiji instead.  Media reporting of divorces among Hollywood celebrities leads us to exaggerate their frequency.[7]  An example given by Kahneman is that strokes cause almost twice as many deaths as all accidents combined, but 80 per cent of respondents to a survey which considered pairs of causes of death judged accidental death to be more likely.  Tornadoes were seen as more frequent killers than asthma, although the latter caused 20 times more deaths.[8]

The representativeness heuristic

When people make categorical judgments (for example, in assessing the likelihood that a defendant is guilty) they tend to base their judgments on the extent to which the evidence being analysed is representative of the category.  People typically rely on the “representativeness heuristic” in which probabilities are evaluated by the degree to which A is representative of B, that is, by the degree to which A resembles B.  When one thing resembles something else in a category, we judge the possibility that the first item is a member of that category as high.  On the other hand, if A does not resemble or is not similar to B, we judge the likelihood that A is in that category as low.  This is referred to as the “representative heuristic”. 

It is useful, but it can lead people to discount relevant statistical information.   When people tend to “undervalue statistical information, this can lead to decision errors”.  For instance, people undervalue the importance of the frequency with which the underlying category occurs: this is known as the “base-rate” statistic.  This heuristic can result in a “form of automated stereotyping” which leads people to rely on “impressionistic and intuitive reactions of the representativeness” of information.

Tversky and Kahneman illustrated judgment by representativeness, by asking respondents to consider an individual who had been described by a former neighbour as follows:

“Steve is very shy and withdrawn, invariably helpful, but with little interest in people, or in the world of reality.  A meek and tidy soul, he has a need for order and structure, and a passion for detail.

Rate the probability that Steve has one of the following occupations.  Use 1 for most likely and 5 for the least likely:

• A farmer
• A salesman
• An airline pilot
• A librarian
• A physician”

As a result of the representative heuristic, the probability that Steve is a librarian is assessed by the degree to which he is representative of, or similar to, the stereotype of a librarian.  This approach can lead to serious errors because the judgment is insensitive to the prior probability, or base-rate frequency, of the outcomes.  For example, the fact that there are more farmers than librarians in the population should enter into any reasonable estimate of the probability that Steve is a librarian rather than a farmer.  However, base-rate frequencies are ignored.[9] 

Fact Finding

Confirmation bias includes the human tendency to favour or interpret information in a way that confirms or strengthens an existing belief.  Once someone has reached a certain view of the facts, it is difficult to dislodge. 

Premature closure is jumping to a conclusion. Earlier, I gave the example of a busy doctor who makes a quick diagnosis (often based on pattern recognition), fails to consider other possible diagnoses, and prematurely stops collecting information. 

Judges are not appointed to make intuitive decisions based on gut feelings.  Because of our training and professional ethics, we are trained to keep an open mind. The research shows that judges seem to be better than your average juror in avoiding what may be described as confirmation bias or premature closing. 

Still, being human, judges and lawyers are not immune to confirmation bias and premature closure. Your difficult task is to help a judge or magistrate avoid that kind of error and harming your client’s interests.  There may be tactical reasons in a criminal or civil case to keep your powder dry, so that the evidence or argument you introduce has its greatest effect. As against that, there are many cases in which introducing a judge or a jury to an alternative view of the case and previewing evidence that challenges the early evidence may be to your advantage. 

Most of my work as a trial judge is not deciding novel questions of law, or even deciding questions of law.  It is deciding what happened.  Several years ago, after swallowing the Kahneman Kool-Aid, I read an article by an Australian born academic, Professor Emma Cunliffe, who applied Kahneman’s ideas about fast and slow thinking to judicial decision‑making. 

Judges pride ourselves on deciding cases by deliberation, but we are humans and prone to intuitive decision-making.  A judge should try to interrupt intuitive decision-making.    Professor Cunliffe observes:[10]

“It seems to be human nature to value information that appears to confirm one’s pre‑existing beliefs and to disregard or fail to search for information that contests those beliefs”.

Faced with the prevalence and necessity for intuitive reasoning, Cunliffe considers the possibility of a process to “interrupt intuitive reasoning that is based on substitution or stereotypes, particularly where the stereotype is otherwise likely to distract the trier of fact from the most likely explanation”.

The approach to judicial decision-making suggested by academics like Cunliffe entails consciously asking:

“For the account that I find more coherent to have occurred, what must the protagonist have done?  When and how must she have done it? In what time period did it occur, according to the best and most independent evidence I can muster? How well is this account grounded in the trial record, and to what extent am I making inferences from proven facts?  What evidence challenges this account, and do I disbelieve that evidence? Are there things I would expect to see if this narrative were true, but which are absent from or contradicted by the record?  And, what assumptions am I making about human behaviour to get to this result?”

Scholars in this area like Simon suggest that judges work through a process of generating two or more models of a case and then restructure those models until they identify the model that is most coherent as a means of settling upon an outcome.

If that is the way that triers of fact go about deciding cases, then Cunliffe is surely right that the questions she suggests should be consciously asked have a capacity to focus a trier of fact “on the evidence that has not been accounted for by the preferred account, and to consider what inferences are being drawn to reach the preferred conclusion”.

The final question which Cunliffe suggests that decision-makers pose is:

“What assumptions am I making about human behaviour to get to this result?”

That is something of a checklist for any judge.  I encourage you to incorporate it in your submissions to judges and juries.

Interrupting Intuitive thinking

From recent weeks in the Bar Practice Course you already have a long list:  read lots of cases; be across your brief; ask your briefing solicitors for additional information and instructions; do not take on too much work, including pro bono work, if the quality of your work will suffer; be prepared to challenge something that has been assumed by those around you; challenge the empirical basis of the predictions and opinions of an expert witness, including one who has been giving the same predictions as a professional witness for decades; ask them if they have gone back and validated their predictions like any good scientist would do; be prepared to ask “Where is your evidence for that?” and be prepared to say  “The Emperor has no clothes”.  Do not just agree with a senior barrister who leads you.  That is not what you are paid to do.  Politely point out when you think they have got something wrong.  Be prepared to politely correct a judge.  Never mislead. Be ethical, find good mentors, be resilient, look after your mental health, be prepared to concede unmeritorious points, issue frame in oral and written submissions, unplug from your screen and earplugs, and go for a walk through an art gallery.

To that long list I have just added:  help the judge to not take the cognitive shortcuts that Kahneman and Tversky wrote about in Science in 1974. 

Kahneman and Tversky’s work inspired the whole field of behavioural economics, and the idea of nudge in public policy.  It has improved health care by avoiding missed diagnoses. It reduces disparities in sentencing practices in the US. 

As a child Dr Donald Redelmeier was very good at maths.  In 1977 Redelmeier’s high school teacher gave him an article to read from Science by Amos Tversky and Daniel Kahneman called ‘Judgment Under Uncertainty: Heuristics and Biases’.[11]  In the last 47 years it has become one of the most cited articles in social science.  People like Dr Redelmeier have used its insights by improving decision-making by doctors.

Dr Redelmeier works at a hospital in Toronto that treats a large number of road trauma cases. The Emergency Department treats complex cases of people who have more than one thing wrong with them.  Dr Redelmeier is used by the hospital to check the decisions of specialists for cognitive errors.  He checks on other people’s thinking, by thinking about how other people think.

The following story is taken from Michael Lewis’ The Undoing Project:[12]

“But the dazed young woman who arrived in the emergency room directly from her head-on car crash, with her many broken bones, presented her surgeons, as they treated her, with a disturbing problem.  The rhythm of her heartbeat had become wildly irregular.  It was either skipping beats or adding extra beats; in any case, she had more than one thing seriously wrong with her.

Immediately after the trauma centre staff called Redelmeier to come to the operating room, they diagnosed the heart problem on their own – or thought they had.  The young woman remained alert enough to tell them that she had a past history of an overactive thyroid.  An overactive thyroid can cause an irregular heartbeat.  And so, when Redelmeier arrived, the staff no longer needed him to investigate the source of the irregular heartbeat but to treat it.  No one in the operating room would have batted an eye if Redelmeier had simply administered the drugs for hyperthyroidism.  Instead, Redelmeier asked everyone to slow down.  To wait.  Just a moment.  Just to check their thinking – and to make sure they were not trying to force the facts into an easy, coherent, but ultimately false story.

Something bothered him.  As he said later, ‘Hyperthyroidism is a classic cause of an irregular heart rhythm, but hyperthyroidism is an infrequent cause of an irregular heart rhythm.’  Hearing that the young woman had a history of excess thyroid hormone production, the emergency room medical staff had leaped, with seeming reason, to the assumption that her overactive thyroid had caused the dangerous beating of her heart.  They hadn’t bothered to consider statistically far more likely causes of an irregular heartbeat.  In Redelmeier’s experience, doctors did not think statistically.  ‘Eighty percent of doctors don’t think probabilities apply to their patients,’ he said.  ‘Just like 95 percent of married couples don’t believe the 50 percent divorce rate applies to them, and 95 percent of drunk drivers don’t think the statistics that show that you are more likely to be killed if you are driving drunk than if you are driving sober applies to them.’

Redelmeier asked the emergency room staff to search for other, more statistically likely causes of the woman’s irregular heartbeat.  That’s when they found her collapsed lung.  Like her fractured ribs, her collapsed lung had failed to turn up on the X-ray.  Unlike the fractured ribs, it could kill her.  Redelmeier ignored the thyroid and treated the collapsed lung.  The young woman’s heartbeat returned to normal.  The next day, her formal thyroid tests came back: Her thyroid hormone production was perfectly normal.  Her thyroid never had been the issue.  ‘It was a classic case of the representativeness heuristic,’ said Redelmeier.  ‘You need to be so careful when there is one simple diagnosis that instantly pops into your mind that beautifully explains everything all at once.  That’s when you need to stop and check your thinking.’” (emphasis added)

A telling case of a missed diagnosis and a lesson about the dangers of intuitive thinking that leads to a satisfying, plausible conclusion, but a conclusion that is simply wrong.   

Judges, particularly those under time pressure in busy Domestic Violence courts and tribunals, or a Supreme Court Judge deciding several bail cases in a morning, need your help to not decide cases based on stereotypes and intuitive thinking.

Also avoid error on your part by not making assumptions about your client or a witness based on the group that person comes from:  be that a real estate agent from Surfers Paradise or a 19‑year-old youth from a Sudanese, refugee background. In my career at the Bar I acted for the professional indemnity insurer of many Gold Coast real estate agents: some were dodgy, at least one was an exceptional human being whose word was his bond. That experience taught me to not think all Gold Coast real estate agents were the same. 

You need to avoid intuitive thinking, including stereotypical thinking, when you get a brief.  Avoid premature closure, making up your mind after reading the first few witness statements, or making an assessment based on an inadequate sample size. Even if you have done 20 similar cases, that is an invalid number to draw any conclusion. I may have done 20 personal injury trials as a judge, but that does not entitle me to generalise about plaintiffs, insurance companies, psychiatrists called by plaintiffs, or orthopaedic surgeons called by defendants. I generalise because I am human. I have to remind myself of Kahneman’s chapter on the pitfalls of making decisions based on small numbers and the random nature of events. 

In our vocation, the law, we are as prone as doctors to mistaken diagnosis by recognition-primed decision-making and false categorisation.  We are human and prone to cognitive biases. Try not to think of a client, a witness, an opponent, or a judge according to some stereotype or group identity.  Remember that Lord Atkin was not Lord Atkin at birth and did not live in a castle.  He was born in a cottage that stood around the corner. 

Avoid fitting an individual into a group to which you intuitively think that person belongs. Individuals are far more complex and interesting.

Professor Daniel Kahneman 1934- 2024

Daniel Kahneman died a few weeks ago aged 90.  May I end by reading a somewhat long extract from his biographical note when he won The Nobel Prize for Economics.  The insight it gives into the human condition might be applied to contemporary conflict zones and the plight of the oppressed, minorities and refugees.  Kahneman wrote:

“I was born in Tel Aviv, in what is now Israel, in 1934, while my mother was visiting her extended family there; our regular domicile was in Paris. My parents were Lithuanian Jews, who had immigrated to France in the early 1920s and had done quite well. My father was the chief of research in a large chemical factory. But although my parents loved most things French and had some French friends, their roots in France were shallow, and they never felt completely secure. Of course, whatever vestiges of security they’d had were lost when the Germans swept into France in 1940. What was probably the first graph I ever drew, in 1941, showed my family’s fortunes as a function of time – and around 1940 the curve crossed into the negative domain.

I will never know if my vocation as a psychologist was a result of my early exposure to interesting gossip, or whether my interest in gossip was an indication of a budding vocation. Like many other Jews, I suppose, I grew up in a world that consisted exclusively of people and words, and most of the words were about people. Nature barely existed, and I never learned to identify flowers or to appreciate animals. But the people my mother liked to talk about with her friends and with my father were fascinating in their complexity. Some people were better than others, but the best were far from perfect and no one was simply bad. Most of her stories were touched by irony, and they all had two sides or more.

In one experience I remember vividly, there was a rich range of shades.  It must have been late 1941 or early 1942.  Jews were required to wear the Star of David and to obey a 6 p.m. curfew.  I had gone to play with a Christian friend and had stayed too late.  I turned my brown sweater inside out to walk the few blocks home.  As I was walking down an empty street, I saw a German soldier approaching.  He was wearing the black uniform that I had been told to fear more than others – the one worn by specially recruited SS soldiers.  As I came closer to him, trying to walk fast, I noticed that he was looking at me intently.  Then he beckoned me over, picked me up, and hugged me.  I was terrified that he would notice the star inside my sweater.  He was speaking to me with great emotion, in German.  When he put me down, he opened his wallet, showed me a picture of a boy, and gave me some money.  I went home more certain than ever that my mother was right: people were endlessly complicated and interesting.” (emphasis added)

You can imagine why that kind of experience might make a person be interested in psychology.  As a child, Kahneman was the beneficiary of the representative heuristic. The blue-eyed, blonde boy reminded the soldier of his son.  The thought that the boy might be a Jew did not occur to him.

In his late 80s, Professor Kahneman was still producing amazing work, like the co-authored book Noise.  When asked a few years ago what still motivated him, he said “curiosity”. He was unusual. He liked changing his mind. He stated:

“For me when I change my mind it is the pure experience of having learned something. That’s when I am sure I’ve learned something. Yesterday I was stupid, now I have seen the light.”

Conclusion

I hope you benefit from Kahneman’s wisdom, particularly about being curious and being prepared to change your mind about a witness or about what you think the evidence shows happened.  Avoid simple and quick answers.  Interrupt intuitive thinking by judges by politely suggesting that this case may be different to apparently similar cases they may have done.  Suggest that the evidence or lack of evidence should make them stop and think about a provisional, intuitive view. 

In your own work, be curious about people. Don’t jump to easy, intuitive conclusions about individuals or what happened. Keep an open mind. Consider the opposite. What is missing from the picture? What other explanation or diagnosis might explain the evidence? Stop and think, even for a few seconds. Stop and think. 

Further listening

If you would like to listen to some podcast episodes about thinking, and the work of Kahneman and Tversky then here are some links:

BBC – Think with Pinker

Professor Steven Pinker has spent his life thinking about thinking. In this series, he discusses things that he hopes will help all of us make better decisions. He also interviews leaders in the field of psychology, and a former judge and Harvard Law Professor who discusses the life and death choices made by judges and juries.

https://www.bbc.co.uk/programmes/m0011lt1

Freakonomics:  People I Mostly Admire – Remembering Daniel Kahneman

In 2021 Daniel Kahneman talked to Steve Levitt about their work and Kahneman’s book Noise. 

Hidden Brain – The Transformative Ideas of Daniel Kahneman

This podcast remembers Kahneman by revisiting 2018 and 2021 conversations with him. The second part relates to “Noise” and discusses variability in decisions by different judges and between the same judge on different days.

Freakonomics – The Men who Started a Thinking Revolution

Michael Lewis wrote The Undoing Project about the Kahneman – Tversky collaboration. He explains how their work had such a profound influence on how we think about decision-making.

[1]        The Hon P D T Applegarth Issue Framing in Written and Oral Submission

[2]        P D T Applegarth ‘Deciding Novel and Routine Cases without Evidence’ J. Tort Law 2018, 173-208.

[3]        C Guthrie, J Rachlinski & A Wistrich: “Inside the Judicial Mind” (2001) Cornell Law Review, vol 86:777;  C Guthrie, J Rachlinski & A Wistrich: “HeinOnline” (2007) Cornell Law Review, vol 93:1.

[4]        Kylie Burns: “Judges, ‘common sense’ and judicial cognition” (2016) 25(3) Griffith Law Review 319.

[5]        Kahneman: Thinking, Fast and Slow, p 367.

[6]        This article also can be found as an appendix to Kahneman’s bestselling work Thinking, Fast and Slow (Penguin, 2011). 

[7]        Daniel Kahneman, Thinking, Fast and Slow (Penguin, 2011) 130.

[8]        Ibid 138.

[9]        Kahneman “Thinking, Fast and Slow”, p 420 citing “Judgment Under Uncertainty”.

[10]       Emma Cunliffe, ‘Judging, fast and slow: using decision-making theory to explore judicial fact determination’, The International Journal of Evidence & Proof (2014) 139 at 176.

[11]       Amos Tversky and Daniel Kahneman, Judgment under Uncertainty: Heuristics and Biases (1974) 185(4157) Science 1124.

[12]       Michael Lewis, The Undoing Project (WW Norton & Co, 2016) pp 215–216.

To most lawyers, Samuel Griffith is the jurist who drafted the Constitution, the Criminal Code, and many other laws, and who became Australia’s first Chief Justice. 

Portraits and photos of Chief Justice Griffith show a grey-bearded, austere figure. 

Earlier in his life, Griffith was many things:  a precociously gifted student who went down from the bush to top Sydney University aged 17; a brilliant legal practitioner from the age of 18 with an unmatched work ethic; an idealistic, young, progressive MP who opposed vested interests and crusaded against the kidnapping of Melanesians to work on Queensland plantations; and a more mature politician who, at the end of the his career, went into coalition with the conservative interests that he had earlier tormented.[1]

Griffith was not always a grey, old man. In middle age, he was passionate, bright eyed, and sported a bushy black beard.

In 2020, 100 years after Griffith died, a webinar hosted by the Australian Academy of Law and the Supreme Court Queensland Library touched upon some aspects of Griffith’s remarkable life.  One of the speakers was the distinguished historian, Dr Raymond Evans, who spoke about Griffith’s Welsh origins.

As a young historian in Queensland in the mid-1960s, Raymond Evans began researching and writing about violence on Queensland’s frontier.  Around the same time, another young historian, Henry Reynolds, was doing the same in North Queensland.  Each pioneered writing and teaching in an area that had been ignored by universities, the media, and most of the public.

In 1975, Evans co-authored with Kay Saunders and Kathryn Cronin the ground breaking book Race Relations in Colonial Queensland: a history of exclusion, exploitation and extermination.  His publications include A History of Queensland (Cambridge University Press).  Decades after he started his historical research, Raymond Evans contributes to prestigious international works about genocide in Northern Australia.[2]

In 2021 and 2022, Henry Reynolds, in a book and then in Griffith Review, accused Samuel Griffith of having prime responsibility for violence on the Queensland frontier during the time Griffith held office.  In one flourish, Reynolds wrote that Griffith’s “neatly manicured lawyers’ (sic) hands were deeply stained with the blood of murdered men, women and children”. 

These claims came as a surprise to Raymond Evans, who, while not a cheerleader for Griffith, had never seen Griffith as at the forefront of frontier violence by the Native Police or of having condoned it.  Independently, other historians questioned whether Griffith was a suitable candidate for posthumous indictment for the crime of genocide.[3] 

His curiosity aroused, Raymond Evans spent months in the archives, searching for the evidence and analysing it.  The result is a remarkable essay Samuel Griffith and Queensland’s ‘War of Extermination’. I cannot do justice to its development of the evidence, which shows that, far from supporting the excesses of the Native Police and some settlers on the frontiers, Griffith tried to mitigate the violence and prosecute offenders.  Evans carefully explains the social and political environment in which Griffith, the politician, was constrained from doing more than he did to limit frontier violence.

If 19th century Queensland politicians were to be indicted for their blame in permitting frontier violence to occur, many would be indicted before Griffith.  Evans presents a persuasive case that Griffith would not be indicted, let alone stand as a principal offender.  For example, Griffith jointly led with John Douglas a progressive group that was unsuccessful in demanding a Royal Commission into the activities of the Native Police.

“… far from supporting the excesses of the Native Police and some settlers on the frontiers, Griffith tried to mitigate the violence and prosecute offenders. “

Based on their independent research, Professor Mark Finnane and Dr Jonathon Richards published a response to Professor Henry Reynolds’ claims about Griffith in an Australian Historical Studies article, S W Griffith:  A Suitable Case for Indictment?  They observe that the “list of Griffith’s omissions and commissions cannot leave out repeated statements and actions that expressed his view that violence against Aboriginal British subjects was not acceptable and should be dealt with severely”. 

Finnane and Richards describe Griffith “as a figure of his time and empire – a Diceyan figure committed to the rule of law, unshaken in his view of the superiority of British institutions of Law and Governance”.  They write that Griffith “warned of the dangers of a caste society (and undemocratic government) arising from the labour competition of unrestricted Chinese or ‘Polynesian’… immigration”.  I would add that, like the labour movement and most politicians of his time, Griffith was concerned with exclusion of non-White outsiders, rather than the place and fate of indigenous people.   

Recently, Raymond Evans built upon his essay in the first Selden Lecture for 2024:  The Rigours of Truth-Telling: Sir Samuel Griffith and Queensland’s Violent Frontier. The event in The Banco Court was co-hosted by the Supreme Court Library Queensland and Griffith University. It is a remarkable lecture about curiosity, historical inquiry, truth-telling and Griffith’s actions and attitudes to the murder of Aboriginal People by Native Police. 

Evans explains that Griffith was working within a political and social environment that supported extermination of Aboriginal People who resisted the taking of their country by squatters and other interests.   Griffith favoured the abolition of the Native Police because of its excesses, but abolition was politically impossible.  Instead, during his relatively brief time as Colonial Secretary, Griffith implemented changes that Evans describes as “unique and piecemeal, though progressive and expanding, policy measures”. In summary, Evans’ research discloses (in his words):

• “A radical attrition of Native Police services;
• Implementation of normalised policing;
• Novel introduction of Aboriginal court testimony;
• An attempted initiative to rein in the frontier ‘black-birding’ of Aboriginal workers;
• Prosecution of white frontier crimes inflicted on First Nation peoples; and
• The burgeoning of missionary enterprise across the North.”

Evans more than responds to claims that Griffith should bear primary responsibility for genocide. He elevates the analysis above selecting politicians for individual blame to a broader ‘systems analysis’ of the political, class and economic interests that drove the violent acquisition of land from Aboriginal People and the relatively few who ultimately benefited from their brutal dispossession.

Often, we are told that we live in a post-truth world.  Despite this, many of us in science, the humanities, or the law adhere to the idea that, while the truth may be contested, it exists.  It is worth searching for.

In the daily work of courts, judges hear honest individuals’ competing versions of the truth:  what was said at a meeting that occurred 5 years ago, or who threw the first punch. Often it is hard to believe that these honest witnesses were in the same place. In some cases, we are aided by contemporaneous documents, independent witnesses, or CCTV images that help us work out what actually happened.  

A wise judge wrote in a civil case about the processes of memory being overlaid, often subconsciously, by perceptions or self-interest.  McLelland CJ in Equity added, “[a]ll too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed”.[4] 

“Griffith was working within a political and social environment that supported extermination of Aboriginal People who resisted the taking of their country by squatters and other interests.“

Despite these challenges in locating the truth, courts try to work out what happened, and to choose between different versions of the truth.

Part of the exercise is assembling the evidence, including contemporaneous documents.   Historians do the same. Lawyers spend thousands of hours reviewing emails and other documents.  Professional historians spend thousands of hours in the archives.

Next, one draws inferences from the evidence:  including reasonable inferences about the intentions and purposes of players. What was someone’s intent or purpose in doing something, or not doing something? Often, these are hard or impossible questions to confidently answer.

Historians, musicians, literary studies scholars, and lawyers also are in the business of interpretation. What is the best interpretation of historical facts, a musical score, a poem, a contract, or a statute. There may be more than one reasonable interpretation. That is why Dr Evans’ work is called A History of Queensland, not The History of Queensland. 

In 1975, Raymond Evans co-authored the ground breaking work Race Relations in Colonial Queensland: A History of Exclusion, Exploitation and Extermination.  He wrote the part about Indigenous People. Kay Saunders wrote the part about Melanesians and Kathryn Cronin wrote the part about attitudes and responses towards Chinese People in colonial Queensland.

In addition to undertaking important research, Raymond Evans and Kay Saunders had the burden of teaching hundreds of undergraduates each year. I was fortunate to be one of the hundreds of 17-year-olds who they lectured and tutored in 1976. Evans and Saunders brought to lectures and tutorials a depth of knowledge. Their lectures were prepared, organised, and delivered with enthusiasm. Almost 50 years later, their lectures and tutorials remain vivid in my memory and in the memories of my contemporaries.

Research can have an impact. Good teachers do too.

One of my contemporaries in 1976 went on to do race relations courses taught by Evans and Saunders. She wrote to me the other day that their courses “opened my eyes”.  Opened my eyes. Those three words capture the essence of a university education, and the work of good academics: past, present and emerging. 

Recently, Emeritus Professor Saunders co-presented with Dr Andrew Stumer KC a Selden Society lecture about kidnapping and slavery in Queensland and trials in the Supreme Court arising from two slave ships. Their papers and the video are in the Selden Society Lecture Program. 

Raymond Evans continues to research and write.  His work, ‘Genocide in Northern Australia 1824-1928’ is part of The Cambridge World History of Genocide, which was published last year.  After not seeing him for decades, in 2020, I prevailed upon him to give a short talk about Griffith’s early life.  His talk blossomed into an article, Griffith’s Welsh Odyssey, in Griffith Review.

His Selden lecture, titled ‘The Rigours of Truth-Telling’, can be read on-line.  A subtitle might be “Raymond Evans’ Griffith Odyssey”. It maps Evans’ challenging and long solo voyage: his odyssey in the historical archives. The talk reports his curiosity, his initial disposition to support Reynolds’ condemnation of Griffith, his search for the evidence, and being prepared to change his mind in the light of the evidence. 

“In the daily work of courts, judges hear honest individuals’ competing versions of the truth:  what was said at a meeting that occurred 5 years ago, or who threw the first punch. Often it is hard to believe that these honest witnesses were in the same place.”

Evans observes that it is “ironic that the lone public figure who apparently attempted, however inadequately, to challenge the mayhem [of a land-taking venture that was steeped in bloodshed] should now be freighted with the principal blame for it.”  He concludes:

“Griffith was neither a monster nor a saint. In determining his specific role, it is probably best not to be too certain in mounting clamorous, angry calls for redress, bearing in mind that truth-telling, where history is concerned, can be multi-layered, elusively structured, endlessly surprising and perhaps at times chimerical.

For, even after the rigorous application of exhaustive research, history remains mercurial and subject to change – within reach without falling into one’s final definitive grasp. The ‘rigours of truth-telling’ warn us never to be too sure of the outcome.”

[1]  R B Joyce,‘Sir Samuel Walker Griffith (1845-1920)’(1983) Australian Dictionary of Biography, online at https://adb.anu.edu.au/biography/griffith-sir-samuel-walker-445.

[2] Ned Blackhawk et al (eds), The Cambridge World History of Genocide (2023, Cambridge University Press).

[3] Mark Finnane and Jonathon Richards, ‘S W Griffith: A Suitable Case for Indictment?’ (2023) 54(3) Australian Historical Studies 387.

[4] Watson v Foxman (1995) 49 NSWLR 315, 318–9.

Speech of Current Legal Issues Seminar 2 presented at Banco Court Level 3 QEII Courts of Law on 17 August 2023 hosted by the Bar Association of Queensland, the University of Queensland and the Supreme Court Library Queensland.

Stephen Gerald Breyer served as an associate justice of the Supreme Court of the United States from 3 August 1994 until his retirement on 30 June 2022. He was replaced by the President Biden nominee, Justice Ketanji Brown Jackson. His Honour Justice Peter Applegarth AM of the Queensland Supreme Court provides an insight into Justice Breyer and his legacy, in the context of the “Originalist” approach adopted in the US Court’s recent decision-making.

Goodbye Breyer: public servant and supreme jurist

The recent, momentous US Supreme Court judgments on abortion and gun control have drawn worldwide attention to the Originalist jurisprudence of the Court’s majority and called into question the Court’s public standing.  Even before those decisions, the Court had never sunk so low in the American public’s estimation.

Understandably, less attention has been drawn to the departure of Justice Stephen Breyer.  Yet, his long career of public service and his final dissenting judgments deserve both our attention and respect.

His achievements make me wonder why so many great jurists’ names begin with B:  Brandeis, Bingham and Brennan to name a few. 

Early years

Stephen Breyer was born in San Francisco in 1938 of Romanian and German-Jewish ancestry. 

His father, who attended Stanford University, was the first in his family to attend college and worked for 41 years as a lawyer for the San Francisco Board of Education.  Breyer wears his father’s watch that is engraved with a note about that public service. 

Breyer’s mother was active in community work.

Breyer graduated from Stanford University and won a scholarship to study at Oxford.  He later studied at Harvard Law School, graduating in 1964.  He served as law clerk to Justice Goldberg on the US Supreme Court and later worked in the US Department of Justice’s Anti-Trust Division.

In 1967, Breyer returned to Harvard where he taught until 1980.  He was an expert in administrative law and deregulation of the airline industry, and also wrote extensively about copyright law.

During leave, he worked as an assistant special prosecutor on the Watergate Special Prosecution Force and as special counsel to the Senate Judiciary Committee.

Judicial Career

In 1980, Breyer was appointed to the US Court of Appeals for the First Circuit.  He also served on the Judicial Conference and on the Sentencing Commission, which introduced guidelines to reduce inconsistency in sentencing while maintaining a degree of judicial discretion.

In 1994, Breyer’s appointment by President Clinton to the Supreme Court was confirmed in a 87-9 vote in the US Senate.

Judicial service

The cases that have engaged public attention during Breyer’s time on the bench distract attention from the quality and quantity of his judgments on less controversial issues.  While on the US Supreme Court he has written more than 500 major opinions, many on complex “black letter law” issues. 

His administrative law background and judicial philosophy made him deferential to expert assessments by regulators and evaluations by legislators about the public interest.  He showed a consistent pattern of deferring to Congress, voting to overturn congressional legislation at a lower rate than any other judge since 1994.

I will not detail his contribution to the law on controversial topics such as voting rights, free speech, civil rights, affirmative action, abortion and capital punishment. Instead, I will refer briefly to what Professor Cass Sunstein described in 2006 as Breyer’s Democratic Pragmatism.[1]

This approach is, in part, a response to the Originalism of Justice Scalia and his followers, which reached its high point with the abortion and gun control decisions of June 2022.

Breyer explained his judicial philosophy and approach to interpretation both in decisions and in extra-judicial writing.  They include his book Active Liberty about the right of the citizenry to participate in government.

According to Breyer, central concerns of interpretation include purposes and regard to consequences.  He argues that considering the practical consequences of an interpretation is a way to ensure consistency with the law’s intended purpose.

An engaging three-minute video captures Breyer’s philosophy and character.[2]

Over the years Breyer argued that if the Court ignores the consequences of its decisions, it can lead to disastrous results.  This lesson was lost on many of his colleagues.

In his 2010 book Making Our Democracy Work: A Judge’s View, he explained that judges have six tools to decide a provision’s meaning: (1) its text; (2) its historical context; (3) precedent; (4) tradition; (5) its purpose; and (6) the consequences of potential interpretations.

One might observe that, as in any other skilled trade, one cannot use only one tool on all tasks.

Politicians in Robes

To many observers of recent history, it seems that appointees to the US Supreme Court have been chosen to serve specific political agendas on issues like abortion, and thereby galvanise electoral support for a presidential candidate.

The Roberts Court’s 2010 decision in Citizens United, in which the Court struck down campaign finance laws on a basis that was not argued by the litigants, gave a preview of what was to occur this year.  For example, Mississippi did not initially challenge Roe v Wade.

Professor Ronald Dworkin wrote about the Citizens United case in an article titled ‘The Decision that Threatens Democracy’.[3]

It started:

“No Supreme Court decision in decades has generated such open hostilities among the three branches of our government as has the Court’s 5–4 decision in Citizens United v. FEC in January 2010.  The five conservative justices, on their own initiative, at the request of no party to the suit, declared that corporations and unions have a constitutional right to spend as much as they wish on television election commercials specifically supporting or targeting particular candidates.”

Dworkin exposed flaws in the majority’s decision, its inconsistency with free speech principles and precedent, and its terrible implications. He concluded:

“The Supreme Court’s conservative phalanx has demonstrated once again its power and will to reverse America’s drive to greater equality and more genuine democracy.  It threatens a step-by-step return to a constitutional stone age of right-wing ideology.  Once again it offers justifications that are untenable in both constitutional theory and legal precedent.  Stevens’s remarkable dissent in this case shows how much we will lose when he soon retires.  We must hope that Obama nominates a progressive replacement who not only is young enough to endure the bad days ahead but has enough intellectual firepower to help construct a rival and more attractive vision of what our Constitution really means.”

The “bad days” that were ahead in 2010 were worse than Dworkin probably imagined. They now are recent history.  President Obama made appointments, but after the death of Justice Scalia, Republican Senate majority leader Mitch McConnell did not allow even a procedural vote on the nomination of the distinguished jurist Merrick Garland to fill the vacancy.  Justice Ruth Bader Ginsburg, seemingly thinking she would live forever, did not retire during the eight years of the Obama presidency.  As a result, President Trump was able to appoint three judges to the Court, promising voters that they would overrule Roe v Wade.  This they did in June 2022.

The Noble Lie

In his last book The Authority of the Court and the Perils of Politics, Breyer attempted to preserve the notion that current judges on the US Supreme Court, despite their differences, were engaged in an essentially apolitical exercise.  Professor Laurence Tribe is dismissive of such claims:[4]

“Unfortunately Breyer’s book, surely the least impressive of his considerable body of extrajudicial writings, is not a thoughtful exploration of the virtues and vices of well-meaning deception.  In his stubborn avowal that the Court – even with its current far-right supermajority – remains an apolitical body, he perpetuates a lie that is anything but noble.  I have written much that is entirely positive about his judicial opinions, so it pains me to say that his book reads as though it had been written by someone oddly unaware of the implausibility of its factual claims.”

The June 2022 Originalist triumph and Breyer’s last stand

Much has been and will be written about the Court’s June 2022 decisions on abortion and gun control.  Podcasts also abound.[5]

For some, Breyer’s dissents in those cases may seem as meaningless as a brilliant try or goal scored by a team during a historic and catastrophic defeat in a Grand Final.  Yet, they show a first-class mind at work and a masterful legal technique.

I will note just a few aspects of his dissent in the successful challenge to New York’s century-old law about carrying concealed weapons in public.

By way of background, the US Supreme Court’s 2006 decision in Heller transformed a settled view about the purpose and scope of the Second Amendment.  Justice Scalia, writing for the majority, claimed that historical materials supported the conclusion that the Second Amendment conferred individual rights.  This was shabby history on Scalia’s part, as Justice Stevens in dissent explained at the time.  Since 2006, historians have exposed Scalia’s purported reliance on the historical record as overwhelmingly against the weight of the evidence.

Scalia’s judgment in Heller was the subject of a careful analysis in 2018 by Justice Glenn Martin which can be accessed here.[6]

Justice Breyer’s recent dissent begins with some devastating evidence about the problem of gun violence.[7]

He respects the ruling in Heller and upholds the New York law by applying Heller’s two-stage test for constitutional validity.  This was a test that Scalia developed in Heller so as to allay concerns that many widely-accepted gun controls would be rendered unconstitutional.  The Supreme Court’s latest decision abandons the two-stage test.

Breyer’s dissent carefully dismantles the majority’s Originalist argument and its excessive reliance on historical analysis about the type of regulation that was envisaged when the Second Amendment was passed. 

Breyer also raises the following practical problems with the approach of the Originalists:

“The Court’s insistence that judges and lawyers rely nearly exclusively on history to interpret the Second Amendment thus raises a host of troubling questions.  Consider, for example, the following.  Do lower courts have the research resources necessary to conduct exhaustive historical analyses in every Second Amendment case?  What historical regulations and decisions qualify as representative analogues to modern laws?  How will judges determine which historians have the better view of close historical questions?  Will the meaning of the Second Amendment change if or when new historical evidence becomes available?  And, most importantly, will the Court’s approach permit judges to reach the outcomes they prefer and then cloak those outcomes in the language of history?  See S. Cornell, Heller, New Originalism, and Law Office History: “Meet the New Boss, Same as the Old Boss,” 56 UCLA L. Rev. 1095, 1098 (2009) (describing “law office history” as “a results oriented methodology in which evidence is selectively gathered and interpreted to produce a preordained conclusion”).”

Breyer’s deference to democratic, evidence-based assessments in complex cases is a refreshing alternative to the Originalist obsession with what form of gun regulation was tolerated or envisaged in the 18th century. 

The majority suggests that concealed weapons can be controlled in “sensitive places” like courthouses but leaves the citizenry to speculate whether subways and planes also are “sensitive places”.  Sadly, no one was thinking about those places when the Amendment was passed.  The Amendment was anchored in the need to arm a militia in defence of the republic, not the supposed individual right to conceal guns on trains or planes.  Regulation of guns was accepted until recent decades, even by the NRA, until it began to wield money and political power at elections and to challenge in courts the validity of long-standing gun controls, aided by judges like Scalia. 

The new majority’s decision is based on dubious historical analysis (as Breyer points out) and a disregard of purpose and consequences in the task of interpretation.

On the central issue in the gun case of balancing the interest of people to have guns for self-defence and other legitimate purposes against the scourge of gun violence, Breyer wrote:

“Balancing these lawful uses against the dangers of firearms is primarily the responsibility of elected bodies, such as legislatures. It requires consideration of facts, statistics, expert opinions, predictive judgments, relevant values, and a host of other circumstances, which together make decisions about how, when, and where to regulate guns more appropriately legislative work. That consideration counsels modesty and restraint on the part of judges when they interpret and apply the Second Amendment.”

Modesty and self-restraint do not feature in the majority opinions.  But they are important qualities for judges, and not only when they encounter difficult questions about historical materials from the 18th century.

In response to Breyer’s dissent, Justice Samuel Alito took a cheap parting shot at Breyer by noting that the New York law did not stop the recent mass killings in Buffalo.  Breyer did not claim that it would.  Instead, he pointed to the purpose of the New York law, and the scope that the Second Amendment gives to States, in accordance with Heller, to regulate guns in public places.  Crowded States like New York can choose to have different concealed gun laws to a State like Montana.  It’s called democracy.

Viewed from this side of the Pacific, the Alito–Breyer spat seems to boil down to this:

1. Alito says people are afraid of being attacked and so mostly enjoy the right to have as many guns as they like, just about anywhere they like.
2. Breyer says that people are afraid because there are too many guns in society, and States should be able to regulate them so as to reflect their citizens’ legitimate concerns about gun violence.

Breyer’s legacy

One hopes for the sake of American democracy and the rule of law that the two recent decisions of the Supreme Court have not placed that Court beyond repair and devoid of essential public confidence.

Historians will argue whether the 50-year period between about 1950 and 2000 were an exceptional period in the Supreme Court’s history, and that in recent times it simply has reverted to its historic role of being a brake on democracy and the realisation of individual rights.  Many of us for most decades of our lives have known a US Supreme Court that generally extended voting rights, ended racial segregation in schools and public places, championed free speech, upheld privacy against arbitrary intrusion by the State, introduced due process rights in the criminal justice system, and respected the autonomy of the individual. 

The idea of the Supreme Court taking away rights is unfamiliar.  Yet, it involves the simple notion that what the Court gives, the Court may take away.

Some analysts are inclined to contrast the bipartisan support for Roe v Wade on the Court in the 1970s with the hyper-partisan 6–3 division in 2022 that overruled it.  Others will say that Roe v Wade set in train a political movement that irreparably politicised the Court along fracture lines that run deep in modern America.  They also will say that this has now exposed US Supreme Court judges for what they always have been: politicians in robes.

Whatever the merit of these arguments, and the comparison with the path abortion law took in this country and other democracies, it is sad that judges like Stephen Breyer are tarred with that brush after a lifetime of public service and fidelity to the rule of law. 

Breyer’s jurisprudence, both on and off the bench, has recognised the role of the Court is keeping the channels of democracy open by ensuring free speech rights, limits on campaign finance so as to aid public participation, and controls over anti-democratic gerrymandering and voter suppression.  His decisions defer to other branches of government, while preserving the Court’s historic role in protecting the constitutional rights of individuals and minorities.

Breyer’s achievements as a tireless but cheerful servant to the law should be remembered.  He deserves more than to be counted as one vote on a team that lost the big games 6–3 at the end of his career.

If there is any hope for the Court to get out of its present predicament, it is that Breyer’s replacement on the Supreme Court is a jurist of similar qualities, who happened to serve her apprenticeship as his clerk.[8]

Anyone who witnessed Justice Ketanji Brown Jackson during her confirmation hearing in March this year saw a woman of remarkable ability, composure and integrity.  Her words about her sense of isolation as a first-year student at Harvard and the need to persevere are inspirational.[9]

The judicial baton has been passed by Breyer to a new generation.  Another democratic pragmatist, concerned with judicial methodology rather than ideology.

The work of Stephen Breyer should not be forgotten in the brave new world of Originalism which has diminished the US Supreme Court both at home and abroad.

[1] Cass R Sunstein, ‘Justice Breyer’s Democratic Pragmatism’ (2006) 115(7) Yale Law Journal, 1719.

[2] Stephen Breyer, ‘How do you interpret the law?’ (5 July 2007) Big Think. Available at https://bigthink.com/videos/how-do-you-interpret-the-law/.

[3] Ronald Dworkin, ‘The Decision that Threatens Democracy’ (2010) 57(8) New York Review of Books.

[4] Laurence H Tribe, ‘Politicians in Robes’ (2022) 69(4) New York Review of Books.

[5] See for example, Amicus with Dahlia Lithwick, ‘Just Doing the Job They Were Put on the Court to Do’ (25 June 2022) Slate. Available at https://slate.com/podcasts/amicus/2022/06/dobbs-is-the-beginning-not-the-end.

[6] Glenn Martin, ‘Guns and judges: Antonin Scalia and the right to bear arms’ (Selden Society Lecture, 3 May 2018). Available at https://legalheritage.sclqld.org.au/2018-lecture-one.

[7] New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. ___ (2022) at page 1 of Breyer J’s opinion.

[8] For a charming insight into Breyer’s daily work with his clerks, see C-Span, ‘Justice Breyer in his Chambers’ (7 October 2009) YouTube. Available at https://www.youtube.com/watch?v=ADocyeUaxZ8.

[9] C-Span, ‘“Persevere.”’ (24 March 2022) YouTube. Available at https://www.youtube.com/watch?v=w6gUP3XxbjA.