High Court of Australia
The High Court of Australia is the highest court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states and territories, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.
|High Court of Australia|
|Location||Canberra, Australian Capital Territory (🌍 )|
|Composition method||Vice-regal appointment upon Prime Ministerial nomination, following advice of Attorney-General and Cabinet|
|Authorized by||Constitution of Australia|
|Appeals from||Subject to section 35A of the Judiciary Act 1903:|
|Judge term length||Until age of 70 years (Constitution of Australia, s 72 following 1977 referendum)|
|Number of positions||7, by statute|
|Chief Justice of Australia|
|Since||30 January 2017|
The High Court is mandated by section 71 of the Constitution, which vests in it the judicial power of the Commonwealth of Australia. The Court was constituted by, and its first members were appointed under, the Judiciary Act 1903. It now operates under sections 71 to 75 of the Constitution, the Judiciary Act, and the High Court of Australia Act 1979. It is composed of seven Justices: the Chief Justice of Australia, currently Susan Kiefel , and six other Justices. They are appointed by the Governor-General of Australia on the advice of the federal government, and under the Constitution must retire at age 70.
The High Court has had a permanent home in Canberra since 1979. The majority of its sittings are held in the High Court building, which is situated in the Parliamentary Triangle overlooking Lake Burley Griffin. With an increasing utilisation of video links, sittings are also often held in the state capitals.
The High Court exercises both original jurisdiction (cases that originate in the High Court) and appellate jurisdiction (appeals made to the High Court from other courts). The High Court is the court of final appeal with the ability to interpret the common law for the whole of Australia, not just the state or territory in which the matter arose. The High Court's broad jurisdiction is similar to that of the Supreme Court of Canada and unlike the Supreme Court of the United States which has a more limited jurisdiction. As such, the court is able to develop the common law consistently across all the states and territories. This role, alongside its role in constitutional interpretation, is one of the court's most significant. As Sir Owen Dixon said on his swearing in as Chief Justice of Australia:
"The High Court's jurisdiction is divided in its exercise between constitutional and federal cases which loom so largely in the public eye, and the great body of litigation between man and man, or even man and government, which has nothing to do with the Constitution, and which is the principal preoccupation of the court."
The original jurisdiction of the High Court refers to matters that are originally heard in the High Court. The Constitution confers actual (section 75) and potential (section 76) original jurisdiction.
Section 75 of the Constitution confers original jurisdiction in regard to "all matters":
- arising under any treaty
- affecting consuls or other representatives of other countries
- in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party
- between States, or between residents of different States, or between a State and a resident of another State
- in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.
The conferral of original jurisdiction creates some problems for the High Court. For example, challenges against immigration-related decisions are often brought against an officer of the Commonwealth within the original jurisdiction of the High Court.
Section 76 provides that Parliament may confer original jurisdiction in relation to matters:
- arising under the constitution or involving its interpretation
- arising under any laws made by the Parliament
- of admiralty and maritime jurisdiction
- relating to the same subject matter claimed under the laws of different states.
Constitutional matters, referred to in section 76(i), have been conferred to the High Court by section 30 of the Judiciary Act 1903. However, the inclusion of constitutional matters in section 76, rather than section 75, means that the High Court's original jurisdiction regarding constitutional matters could be removed. In practice, section 75(iii) (suing the Commonwealth) and section 75(iv) (conflicts between states) are broad enough that many constitutional matters would still be within jurisdiction. The original constitutional jurisdiction of the High Court is now well established: the Australian Law Reform Commission has described the inclusion of constitutional matters in section 76 rather than section 75 as "an odd fact of history." The 1998 Constitutional Convention recommended an amendment to the constitution to prevent the possibility of the jurisdiction being removed by Parliament. Failure to proceed on this issue suggests that it was considered highly unlikely that Parliament would ever take this step.
|Australian court hierarchy|
|Federal Law Courts|
|Courts of Australian states and territories|
The High Court's appellate jurisdiction is defined under section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the states and territories, any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia, the Federal Circuit Court of Australia, or other federal courts), and decisions made by one or more Justices exercising the original jurisdiction of the court.
However, section 73 allows the appellate jurisdiction to be limited "with such exceptions and subject to such regulations as the Parliament prescribes". Parliament has prescribed a large limitation in section 35A of the Judiciary Act 1903. This requires "special leave" to appeal. Special leave is granted only where a question of law is raised that is of public importance; or involves a conflict between courts; or "is in the interests of the administration of justice". Therefore, while the High Court is the final court of appeal, it cannot be considered a general court of appeal. The decision as to whether to grant special leave to appeal is determined by one or more Justices of the High Court (in practice, a panel of two or three judges). That is, the Court exercises the power to decide which appeal cases it will consider.
Appeals to the Privy Council
The issue of appeals from the High Court to the United Kingdom's Judicial Committee of the Privy Council was a significant one during the drafting of the Constitution and it continued to be significant in the years after the court's creation. The wording of section 74 of the constitution that was put to voters in the various colonies was that there was to be no appeal to the Privy Council in any matter involving the interpretation of the Constitution or of the Constitution of a State, unless it involved the interests of some other dominion.
Section 74 of the Constitution, as enacted by the Imperial Parliament, prohibited appeals on constitutional matters involving disputes about the limits inter se of Commonwealth or state powers, except where the High Court certified it was appropriate for the appeal to be determined by the Privy Council. It did so only once: in the 1912 case of Colonial Sugar Refining Co Ltd v Attorney-General (Cth) when the Court was equally divided. After that case, in which the Privy Council refused to answer the constitutional questions put to it, the High Court never certified another inter se appeal. Indeed, in the case of Kirmani v Captain Cook Cruises Pty Ltd (1985), the court said that it would never again grant a certificate of appeal.
In general matters, however, section 74 did not prevent the Privy Council from granting leave to appeal against the High Court's wishes and the Council did so often. In some cases the Council acknowledged that the Australian common law had developed differently from English law and thus did not apply its own principles (for example, in Australian Consolidated Press Ltd v Uren (1967), or in Viro v The Queen (1978)), by using a legal fiction that stated that different common law can apply to different circumstances. However, in other cases, the Privy Council enforced English decisions, over-ruling decisions by the High Court. In Parker v The Queen (1963), Chief Justice Sir Owen Dixon led a unanimous judgment that rejected a precedent of the House of Lords in DPP v Smith saying, "I shall not depart from the law on this matter as we have long since laid it down in this Court and I think that Smith's case should not be used in Australia as authority at all". the following year the Privy Council upheld an appeal, applying the House of Lords precedent.
Section 74 did provide that the parliament could make laws to prevent appeals to the Privy Council and it did so, beginning in 1968, with the Privy Council (Limitation of Appeals) Act 1968, which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the Privy Council (Appeals from the High Court) Act 1975 was passed, which had the effect of closing all routes of appeal from the High Court. Appeals from the High Court to the Privy Council are now only theoretically possible in inter se matters if the High Court grants a certificate of appeal under section 74 of the Constitution. As noted above, the High Court indicated in 1985 it would not grant such a certificate in the future. In 1986, with the passing of the Australia Act by both the UK Parliament and the Parliament of Australia (with the request and consent of the Australian States), appeals to the Privy Council from state Supreme Courts were closed off, leaving the High Court as the only avenue of appeal. In 2002, Chief Justice Murray Gleeson said that the "combined effect" of the legislation and the announcement in Kirmani "has been that s 74 has become a dead letter, and what remains of s 74 after the legislation limiting appeals to the Privy Council will have no further effect".
Thirteen High Court judges have heard cases as part of the Privy Council. Sir Isaac Isaacs is the only judge to have sat on an appeal from the High Court, in 1936 after his retirement as Governor-General. Sir Garfield Barwick insisted on an amendment to Privy Council procedure to allow dissent; however he exercised that only once. The appeals mostly related to decisions from other Commonwealth countries, although they occasionally included appeals from a State Supreme Court.
Appellate jurisdiction for Nauru
As per an agreement between Nauru and Australia signed on 6 September 1976, in application of article 57 of the Constitution of Nauru, the High Court of Australia became the ultimate court of appeal for the sovereign Republic of Nauru, formerly an Australian League of Nations mandate. The High Court was empowered to hear appeals from the Supreme Court of Nauru in both criminal and civil cases, with certain exceptions; in particular, no case pertaining to the Constitution of Nauru could be decided by the Australian court. There were a total of five appeals to the High Court under this agreement in the first 40 years of its operation. In 2017, however, this jumped to 13 appeals, most relating to asylum seekers. Some legal commentators (including the Australian Law Reform Commission) have argued that this appellate jurisdiction sits awkwardly with the High Court's other responsibilities and should be renegotiated or repealed. Problems identified including the need to apply Nauruan law and customary practice and that the High Court need not grant leave for an appeal to be heard.
Matthew Batsiua, a former Justice Minister of Nauru, has suggested that the Nauruan government was unhappy with the arrangement following an October 2017 decision from the High Court. Following a protest in May 2015 outside the Nauruan parliament, 19 people were charged with unlawful assembly and other civil offences. The Supreme Court of Nauru subsequently increased the sentences imposed by the District Court, leading to an appeal in which the High Court quashed the decision. The case was remitted to the Supreme Court "differently constituted, for hearing according to law."
On the occasion of the 50th anniversary of Nauru's independence, President Baron Waqa declared to parliament that "[s]everance of ties to Australia’s highest court is a logical step towards full nationhood and an expression of confidence in Nauru’s ability to determine its own destiny." Nauruan Justice Minister David Adeang cited the cost of appeals to the High Court as another reason for Nauru to establish its own Court of Appeal as the country's highest court. Under the agreement, the government of either country could end the arrangement with 90 days notice. Nauru unilaterally exercised that option on 12 December 2017 and the High Court's jurisdiction ended on 12 March 2018. However, the termination of the arrangement did not become known until after the Supreme Court had reheard the case of the protesters and again imposed increased sentences. With the new Court of Appeals not yet established, the defendants are left with no avenue of appeal, a situation criticised as deeply unfair.
The genesis of the court can be traced back to the middle of the 19th century. Before the establishment of the High Court, appeals from the state Supreme Courts could be made only to the Judicial Committee of the Privy Council, which involved the great expense of travelling to London. For this reason some politicians in the colonies wanted a new court that could travel between the colonies hearing appeals.
Following Earl Grey's 1846 proposal for federation of the Australian colonies, an 1849 report from the Privy Council of the United Kingdom suggested that a national court be created. In 1856, the then Governor of South Australia, Richard Graves MacDonnell, suggested to the Government of South Australia that they and the other colonies should consider establishing a court of appeal that would hear appeals from the Supreme Courts in each colony, and in 1860 the Parliament of South Australia passed legislation encouraging MacDonnell to put forward the idea to his colleagues in the other colonies. However, only the Government of Victoria seriously considered this proposal.
At an inter-colonial conference in 1870 in Melbourne, the idea of an inter-colonial court was again raised and subsequently a Royal Commission was established in Victoria to investigate options for establishing a court of appeal and for unifying extradition laws between the colonies and other similar matters. A draft bill establishing a court was put forward by the Commission, but it completely excluded appeals to the Privy Council, which reacted critically and prevented any serious attempts to implement the bill in London (before federation, any laws affecting all the colonies would have to be passed by the British Imperial Parliament in London).
In 1880 another inter-colonial conference was convened, which proposed the establishment of an Australasian Court of Appeal. This conference was more firmly focussed on having an Australian court. Another draft bill was produced, providing that judges from the colonial Supreme Courts would serve one-year terms on the new court, with one judge from each colony at a given time. New Zealand, which was at the time also considering joining the Australian colonies in federation, was also to be a participant in the new court. However, the proposal retained appeals from colonial Supreme Courts to the Privy Council, which some of the colonies disputed, and the bill was eventually abandoned.
The Constitutional Conventions of the 1890s, which met to draft an Australian Constitution, also raised the idea of a federal Supreme Court. Initial proposals at a conference in Melbourne in February 1890 led to a convention in Sydney in March and April 1891, which produced a draft constitution. The draft included the creation of a Supreme Court of Australia, which would not only interpret the Constitution, like the United States Supreme Court, but also would be a court of appeal from the state Supreme Courts. The draft effectively removed appeals to the Privy Council, allowing them only if the British monarch gave leave to appeal and not allowing appeals at all in constitutional matters.
This draft was largely the work of Sir Samuel Griffith, then the Premier of Queensland, later Chief Justice of Queensland and the first Chief Justice of Australia. Other significant contributors to the judicial clauses in the draft included Attorney-General of Tasmania Andrew Inglis Clark, who had prepared his own constitution prior to the convention. Inglis Clark's most significant contribution was to give the court its own constitutional authority, ensuring the separation of powers; the original formulation from Griffith, Edmund Barton and Charles Kingston provided only that the parliament could establish a court.
At the later conventions, in Adelaide in 1897, in Sydney later the same year and in Melbourne in early 1898, there were changes to the earlier draft. In Adelaide, the name of the court was changed from Supreme Court of Australia to High Court of Australia. Many people also opposed the new court completely replacing the Privy Council: many large businesses, particularly those which were subsidiaries of British companies or regularly traded with the United Kingdom, preferred for business reasons to keep the colonies under the unified jurisdiction of the British courts, and petitioned the conventions to that effect. Other arguments posited against removing Privy Council appeals were that Australian judges were of a poorer quality than English ones, and that without the Council's oversight, the law in the colonies risked becoming different from English law. Some politicians, such as Sir George Dibbs, supported the petitioners, but others, including Alfred Deakin, supported the design of the court as it was. Inglis Clark took the view that the possibility of divergence was a good thing, for the law could adapt appropriately to Australian circumstances. Despite the debate, the portions of the draft dealing with the court remained largely unchanged, as the delegates focused on different matters.
After the draft had been approved by the electors of the colonies, it was taken to London in 1899, for the assent of the British Imperial Parliament. However the issue of Privy Council appeals remained a sticking point with a number of Australian and British politicians, including the Secretary of State for the Colonies, Joseph Chamberlain, the Chief Justice of South Australia, Sir Samuel Way, and the Chief Justice of Queensland, Sir Samuel Griffith. Indeed, in October 1899, Griffith made representations to Chamberlain soliciting suggestions from British ministers for alterations to the draft, and offering some alterations of his own. Indeed, such was the effect of these and other representations that Chamberlain called for delegates from the colonies to come to London to assist with the approval process, with a view to their approving any alterations that the British government might see fit to make; delegates were sent, including Deakin, Barton and Charles Kingston, although they were under instructions that they would never agree to changes.
After intense lobbying both in Australia and in the United Kingdom, the Imperial Parliament finally approved the draft constitution, albeit with an altered section 74, which represented a compromise between the two sides: there would be a general right of appeal from the High Court to the Privy Council, except that the Parliament of Australia would be able to make laws restricting this avenue, and also that appeals in inter se matters (matters concerning the boundary between and limits of the powers of the Commonwealth and the powers of the states) were not as of right, but had to be certified by the High Court.
Formation of the court
The Constitution was passed by the Imperial Parliament, and came into effect on 1 January 1901. However, the High Court was not established immediately; it was necessary for the new Parliament of Australia to make laws about the structure and procedure of the court. Some of the members of the First Parliament, including Sir John Quick, then one of the leading legal experts in Australia, opposed legislation to set up the court. Even H. B. Higgins, who was himself later appointed to the court, objected to setting it up, on the grounds that it would be impotent while Privy Council appeals remained, and that in any event there was not enough work for a federal court to make it viable.
In 1902, the then Attorney-General Alfred Deakin introduced the Judiciary Bill 1902 in the House of Representatives. Although Deakin and Griffith had produced a draft bill as early as February 1901, it was continually delayed by opponents in the parliament, and the success of the bill is generally attributed to Deakin's passion and effort in pushing the bill through the parliament despite this opposition. Deakin had proposed that the court be composed of five judges, specially selected to the court; opponents instead proposed that the court should be made up of state Supreme Court justices, taking turns to sit on the High Court on a rotation basis, as had been mooted at the Constitutional Conventions a decade before. Deakin eventually negotiated amendments with the opposition, reducing the number of judges from five to three, and eliminating financial benefits such as pensions.
At one point, Deakin even threatened to resign as Attorney-General due to the difficulties he faced. In what is now a famous speech, Deakin gave a second reading to the House of Representatives, lasting three and a half hours, in which he declared:
"The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power... It is properly termed the keystone of the federal arch... The statute stands and will stand on the statute-book just as in the hour in which it was assented to. But the nation lives, grows and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. [The High Court] enables the Constitution to grow and be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates."
Deakin's friend, painter Tom Roberts, who viewed the speech from the public gallery, declared it Deakin's "magnum opus". The Judiciary Act 1903 was finally passed on 25 August 1903, and the first three justices, Chief Justice Sir Samuel Griffith and Justices Sir Edmund Barton and Richard O'Connor were appointed on 5 October of that year. On 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria.
On 12 October 1906, the size of the High Court was increased to five Justices, and Deakin appointed H. B. Higgins and Isaac Isaacs to the High Court. In February, 1913, the High Court was increased again, with the addition of two justices, bringing the total to seven. Charles Powers and Albert Bathurst Piddington were appointed. The outcry against their appointments was so great, however, that Justice Piddington resigned on 5 April 1913 without having taken up his seat.
First years of the court
After the court's first sitting in the Banco Court in Melbourne, the court continued to use that court until 1928, when a dedicated courtroom was built in Little Bourke Street, next to the Supreme Court of Victoria, which provided the court's Melbourne sitting place and housed the court's principal registry until 1980. The court also sat regularly in Sydney, where it originally shared space in the Criminal Courts in the suburb of Darlinghurst, before a dedicated courtroom was constructed next door in 1923.
The court travelled to other cities across the country, where it did not have any facilities of its own but used facilities of the Supreme Court in each city. Deakin had envisaged that the court would sit in many different locations, so as to truly be a federal court. Shortly after the court's creation, Chief Justice Griffith established a schedule for sittings in state capitals: Hobart, Tasmania in February, Brisbane, Queensland in June, Perth, Western Australia in September and Adelaide, South Australia in October; it is said that Griffith established this schedule because those were the times of year he found the weather most pleasant in each city. The tradition remains to this day, although most of the court's sittings are now conducted in Canberra.
Sittings were dependent on the caseload and to this day sittings in Hobart occur only once every few years. There are annual sittings in Perth, Adelaide and Brisbane for up to a week each. During the Great Depression, sittings outside of Melbourne and Sydney were suspended to reduce costs.
During World War II, the court faced a period of change. The Chief Justice, Sir John Latham, served from 1940 to 1941 as Australia's first ambassador to Japan, although his activities in this role were limited by the mutual assistance pact that Japan had entered into with the Axis powers before he could arrive in Tokyo, and were curtailed by the commencement of the Pacific War. Justice Sir Owen Dixon was also absent for several years, while he served as Australia's minister to the United States in Washington. Sir George Rich was Acting Chief Justice in Latham's absence. There were many difficult cases concerning the federal government's use of the defence power during the war.
From 1952, with the appointment of Sir Owen Dixon as Chief Justice, the court entered a period of stability. After World War II, the court's workload continued to grow, particularly from the 1960s onwards, putting pressures on the court. Sir Garfield Barwick, who was Attorney-General from 1958 to 1964, and from then until 1981 Chief Justice, proposed that more federal courts be established, as permitted under the Constitution. In 1976 the Federal Court of Australia was established, with a general federal jurisdiction, and in more recent years the Family Court and Federal Magistrates Court have been set up to reduce the court's workload in specific areas.
In 1968, appeals to the Privy Council in matters involving federal legislation were barred by the Privy Council (Limitation of Appeals) Act 1968. In 1975, the Privy Council (Appeals from the High Court) Act 1975 closed all routes of appeal from the High Court. In 1986, with the passing of the Australia Act by both the UK Parliament and the Parliament of Australia (with the request and consent of the Australian States), direct appeals to the Privy Council from state Supreme Courts were also closed off, leaving the High Court as the only avenue of appeal.
The life tenure of High Court Justices was ended in 1977. A national referendum in May 1977 approved the Constitution Alteration (Retirement of Judges) Act (Cth), which upon its commencement on 29 July 1977 amended section 72 of the Constitution so as require that all Justices appointed from then on must retire on attaining the age of 70 years.
The High Court of Australia Act 1979 (Cth), which commenced on 21 April 1980, gave the High Court power to administer its own affairs and prescribed the qualifications for, and method of appointment of, its Justices.
The legal history of the court is commonly summarised by reference to the Chief Justice of the time. While it is a convenient way of breaking the history of the Court into periods, it tends to overstate the importance of the Chief Justice and ignores the influence and tenure of other members of the Court. For example, Isaacs J was the primary force in the Knox Court, while the time of his own appointment as Chief Justice saw the emergence of Dixon J as the new intellectual leader of the Court.
As the first High Court, the court under Chief Justice Sir Samuel Griffith had to establish its position as a new court of appeal for the whole of Australia and had to develop a new body of principle for interpreting the Constitution of Australia and federal legislation. Griffith himself was very much the dominant influence on the court in its early years, but after the appointment of Sir Isaac Isaacs and H. B. Higgins in 1906, and the death of foundation Justice Richard O'Connor, Griffith's influence began to decline.
The court was keen to establish its position at the top of the Australian court hierarchy. In Deakin v Webb (1904) Griffith criticised the Supreme Court of Victoria for following a Privy Council decision about the Constitution of Canada, rather than following the High Court's own decision on the Australian Constitution.
In Australian constitutional law, the early decisions of the court were influenced by United States constitutional law. In the case of D'Emden v Pedder (1904), which involved the application of Tasmanian stamp duty to a federal official's salary, the court adopted the doctrine of implied immunity of instrumentalities which had been established in the United States Supreme Court case of McCulloch v. Maryland (1803). That doctrine established that any attempt by the federal government to interfere with the legislative or executive power of the Australian states was invalid, and vice versa. Accompanying that doctrine was the doctrine of reserved State powers, which was based on the principle that the powers of the Australian parliament should be interpreted narrowly, to avoid intruding on areas of power traditionally exercised by the state parliaments. The concept was developed in such cases as Peterswald v Bartley (1904), R v Barger (1908) and the Union Label case (1908).
Together the two doctrines helped smooth the transition to a federal system of government and "by preserving a balance between the constituent elements of the Australian federation, probably conformed to community sentiment, which at that stage was by no means adjusted to the exercise of central power." The court had a generally conservative view of the Constitution, taking narrow interpretations of section 116 (which guarantees religious freedom) and section 117 (which prevents discrimination on the basis of someone's state of origin), interpretations that were to last well into the 1980s.
Two of the original judges of the Court, Griffith and Sir Edmund Barton, were frequently consulted by governors-general, including on the exercise of the reserve powers. This practice of consultation has continued from time to time since.
Knox, Isaacs and Gavan Duffy courts
Adrian Knox became Chief Justice on 18 October 1919 and less than three months later, foundation Justice Sir Edmund Barton died, leaving no original members. The most significant case of the era was the Engineers case (1920), decided at the beginning of Knox's term. In that case, the doctrines of reserved State powers and implied immunity of instrumentalities were both overturned, and the court entered a new era of constitutional interpretation in which the focus would fall almost exclusively on the text of the Constitution, and in which the powers of the Australian parliament would gain increasing importance.
Knox was knighted in 1921, the only Chief Justice to be knighted during his term. Some of the Knox court's early work related to the aftermath of World War I. In Roche v Kronheimer (1921), the Court upheld federal legislation which allowed for the making of regulations to implement Australia's obligations under the Treaty of Versailles. The majority decided the case on the defence power, but Higgins decided it on the external affairs power, the first case to decide that the external affairs power could be used to implement an international treaty in Australia.
Sir Isaac Isaacs was Chief Justice for only forty-two weeks, before leaving the court to be appointed Governor-General of Australia. Isaacs was ill for much of his term as Chief Justice and few significant cases were decided under his formal leadership; rather, his best years were under Knox, where he was the most senior Justice and led the court in many decisions.
Sir Frank Gavan Duffy was Chief Justice for four years beginning in 1931, although he was already 78 when appointed to the position and did not exert much influence, given that (excluding single-Justice cases) he participated in only 40 per cent of cases in that time, and regularly gave short judgments or joint judgments with other Justices. In the context of the Great Depression, the court was reduced to six Justices, resulting in many tied decisions which have no lasting value as precedent.
During this time, the court did decide several important cases, including Attorney-General (New South Wales) v Trethowan (1932), which considered Premier of New South Wales Jack Lang's attempt to abolish the New South Wales Legislative Council, and the First State Garnishee case (1932), which upheld federal legislation compelling the Lang government to repay its loans. Much of the court's other work related to legislation passed in response to the Depression.
The court under Chief Justice Sir John Latham, who came to the office in 1935, was punctuated by World War II. Although it dealt with cases in other areas, its most important and lasting work related to wartime legislation, and the transition back to peace following the war.
The court upheld much legislation under the defence power, interpreting it broadly wherever there was a connection to defence purposes, in cases such as Andrews v Howell (1941) and de Mestre v Chisholm (1944). In general, the Curtin Labor government was rarely successfully challenged, the court recognising the necessity that the defence power permit the federal government to govern strongly. The court also allowed the federal government to institute a national income tax scheme in the First Uniform Tax case (1942), and upheld legislation allowing the proclamation of the pacifist Jehovah's Witnesses religion as a subversive organisation, in the Jehovah's Witnesses case (1943).
The court reined in the wide scope of the defence power after the war, allowing for a transitional period. It struck down several key planks of the Chifley Labor government's reconstruction program, notably an attempt to nationalise the banks in the Bank Nationalisation case (1948), and an attempt to establish a comprehensive medical benefits scheme in the First Pharmaceutical Benefits case (1945). However the court also famously struck down Menzies Liberal government legislation banning the Communist Party of Australia in the Communist Party case (1951), Latham's last major case.
Apart from the wartime cases, the Latham court also developed the criminal defence of honest and reasonable mistake of fact, for example in Proudman v Dayman (1941). It also paved the way for the development of the external affairs power by upholding the implementation of an air navigation treaty in R v Burgess; Ex parte Henry (1936).
Under Chief Justice Sir Owen Dixon, who was elevated to that role in 1952 after 23 years as a Justice, the court enjoyed its most successful period, with British judge, Master of the Rolls Lord Denning, describing the time as the court's "Golden Age". Dixon, widely regarded as Australia's greatest judge, had a commanding personal and legal influence over the court in this time, measurable in the rise in joint judgments (many of which were led by Dixon) and good relations between the Justices.
While there were fewer cases which tested the limits of federal power, probably due to the Menzies government which was firmly entrenched in its conservative phase throughout Dixon's tenure, the court did decide several important constitutional cases. Dixon led the court in firmly establishing the separation of powers for the judiciary in the Boilermakers' case (1956), and the court also upheld the continuing existence of the federal government's income tax scheme in the Second Uniform Tax case (1957).
During Dixon's time as Chief Justice, the court came to adopt several of the views that Dixon had advanced in minority opinions in years prior. In several cases, the court upheld Dixon's interpretation of section 92 (one of the most troublesome sections of the Constitution), which he regarded as guaranteeing a constitutional right to engage in interstate trade, subject to reasonable regulation. It also followed Dixon's interpretation of section 90 (which prohibits the states from exacting duties of excise), although both these interpretations were ultimately abandoned many years later.
Sir Garfield Barwick came to the court as Chief Justice in 1964. A significant decision of the Barwick court marked the beginning of the modern interpretation of the corporations power, which had been interpreted narrowly since 1909. The Concrete Pipes case (1971) established that the federal parliament could exercise the power to regulate at least the trading activities of corporations, whereas earlier interpretations had allowed only the regulation of conduct or transactions with the public.
The court decided many other significant constitutional cases, including the Seas and Submerged Lands case (1975), upholding legislation asserting sovereignty over the territorial sea; the First (1975) and Second (1977) Territory Senators' cases, which concerned whether legislation allowing for the mainland territories to be represented in the Parliament of Australia was valid; and Russell v Russell (1976), which concerned the validity of the Family Law Act 1975. The court also decided several cases relating to the historic 1974 joint sitting of the Parliament of Australia, including Cormack v Cope (1974) and the Petroleum and Minerals Authority case (1975).
The Barwick court decided several infamous cases on tax avoidance and tax evasion, almost always deciding against the taxation office. Led by Barwick himself in most judgments, the court distinguished between avoidance (legitimately minimising one's tax obligations) and evasion (illegally evading obligations). The decisions effectively nullified the anti-avoidance legislation and led to the proliferation of avoidance schemes in the 1970s, a result which drew much criticism upon the court.
Sir Harry Gibbs was appointed as Chief Justice in 1981. Under his leadership, the court moved away from the legalism and conservative traditions which had characterised the Dixon and Barwick courts.
The Gibbs court made several important decisions in Australian constitutional law. It allowed the Federal Parliament to make very wide use of the external affairs power, by holding that this power could be used to implement treaties into domestic law with very few justiciable limits. In Koowarta v Bjelke-Petersen (1982) four judges to three upheld the validity of the Racial Discrimination Act 1975, although no single view had majority support. However, in the Tasmanian Dams case (1983), a majority of the court upheld federal environmental legislation under the power.
The court also adopted a more expansive interpretation of the corporations power. In the Actors Equity case (1982), the court upheld regulations which, although they did not directly regulate corporations, indirectly protected corporations. In the Tasmanian Dams case, the court indicated that it would interpret the power to uphold legislation regulating the non-trading activities of corporations, although it did not decide the case on that basis. The external affairs power and the corporations power have both been increasingly relied on by the federal government to extend its authority in recent years.
In administrative law, the court expanded on the doctrines of natural justice and procedural fairness in Kioa v West (1985). Although Gibbs himself dissented on those points, he did decide that executive decision makers were obliged to take humanitarian principles into consideration. Outside of specific areas of law, the court was also involved in several cases of public significance, including the Chamberlain case (1984), concerning Lindy Chamberlain, and A v Hayden (1984), concerning the botched ASIS exercise at the Sheraton Hotel in Melbourne.
Sir Anthony Mason became Chief Justice in 1987. The Mason court was very stable, with only one change in the bench in its eight years, the appointment of Michael McHugh after Sir Ronald Wilson's retirement. The court under Mason was widely regarded as the most liberal bench in the court's history.
The Mason court made many important decisions in all areas of Australian law. One of its first major cases was Cole v Whitfield (1988), concerning the troublesome section 92, which had been interpreted inconsistently and confusingly since the beginning of the court. For the first time, the court referred to historical materials such as the debates of the Constitutional Conventions to ascertain the purpose of the section, and the unanimous decision indicated "a willingness to overturn established doctrines and precedents perceived to be no longer working", a trend which typified the Mason court.
The most popularly significant case decided by the Mason court was the Mabo case (1992), in which the court found that the common law was capable of recognising native title. The decision was one of the High Court's most controversial of all time and represented the tendency of the Mason court to receive "high praise and stringent criticism in equal measure." Other controversial cases included the War Crimes Act case (1991), regarding the validity of the War Crimes Act 1945; Dietrich v The Queen (1992), in which the court found that a lack of legal representation in a serious criminal case can result in an unfair trial; Sykes v Cleary (1992), regarding the disputed election of Phil Cleary; and Teoh's case (1995), in which the court held that ratification of a treaty by the executive could create a legitimate expectation that members of the executive would act in accordance with that treaty.
The court developed the concept of implied human rights in the Constitution in cases such as Australian Capital Television Pty Ltd v Commonwealth (1992), Nationwide News Pty Ltd v Wills (1992) and Theophanous v Herald & Weekly Times Ltd (1994), in which the court recognised an implied freedom of political communication arising from the nature of the Constitution in laying out a system of representative government.
In other areas of law, the court developed doctrines of equity in relation to commercial law and contract law, in cases such as Waltons Stores v Maher (1988) and Trident General Insurance v McNiece (1988), and made significant developments in tort law, in cases such as Rogers v Whitaker (1992) and Burnie Port Authority v General Jones Pty Ltd (1994).
Sir Gerard Brennan succeeded Mason in 1995. In contrast to the previous court, the Brennan court had many changes in its membership despite being only three years long. The court decided many significant cases.
In Ha v New South Wales (1997) the court invalidated a New South Wales tobacco licensing scheme, reining in the licensing scheme exception to the prohibition on states levying excise duties, contained in Section 90 of the Constitution. While it did not overturn previous cases in which schemes had been upheld, it did emphasise that the states could not stray too far from the constitutional framework.
The Brennan court made a number of significant decisions in relation to the judiciary of Australia. In Grollo v Palmer (1995) and Hindmarsh Island Bridge case (1998), the court developed the persona designata doctrine, and in Kable v DPP (1997), the court rejected attempts by the Parliament of New South Wales to establish a system of preventative detention and found that the states do not have unlimited ability to regulate their courts, given the place of the courts in the Australian court hierarchy.
The court decided several cases relating to the implied freedom of political communication developed by the Mason court, notably Lange v Australian Broadcasting Corporation (1997) and the Duck shooting case (1997). It also decided several native title cases, including the controversial Wik case (1996).
Murray Gleeson was appointed Chief Justice in 1998. The court under Gleeson's leadership was generally regarded as more conservative than under Mason or Brennan, favouring legalism in the tradition of the Dixon and Barwick courts. In the Cross-vesting case (1999), the court struck down legislation vesting state jurisdiction in the Federal Court. In Al-Kateb v Godwin (2004) a majority of the court applied a narrow interpretation of the Migration Act 1958, finding that it permitted executively-imposed indefinite detention of stateless persons. However, the court did not entirely shy away from principle and public policy in its decisions.
In Egan v Willis (1998), the court supported the New South Wales Legislative Council's ability to suspend the Treasurer when he failed to produce documents before the Council, emphasising the purpose of the ability in facilitating responsible government. In Sue v Hill (1999), the court recognised Australia's emergence as a sovereign independent nation, finding that the United Kingdom was a "foreign power".
The Gleeson court decided a number of important native title cases, including Yanner v Eaton (1999), Western Australia v Ward (2002) and the Yorta Yorta case (2002). In tort law, the court's significant decisions include Perre v Apand Pty Ltd (1999), concerning negligence actions where there is only pure economic loss as opposed to physical or mental injury, Dow Jones v Gutnick (2002), regarding defamation on the Internet, and Cattanach v Melchior (2003), a wrongful life case involving a healthy child. In criminal law, the court in R v Tang (2008) upheld slavery convictions against the owner of a brothel who had held several women in debt bondage after they had been trafficked to Australia.
Perhaps the Gleeson court's most significant case was among its later ones. In the WorkChoices case (2006), the court finally explicitly accepted a wide reading of the corporations power, after years of gradual expansion following the Concrete Pipes case (1971).
Robert French was appointed Chief Justice in September 2008. The first decision handed down by the French Court was Lujans v Yarrabee Coal Company Pty Ltd (2008), a case dealing with a motor vehicle accident. One of the most notable judgments handed down by the French Court was Pape v Commissioner of Taxation (2009), a constitutional law case concerning the existence of the Commonwealth's so-called "appropriation power" and the scope of its executive and taxation powers.
Susan Kiefel was appointed Chief Justice in January 2017. The Kiefel court has decided two important constitutional cases: in Brown v Tasmania, its members adopted a conflicting variety of approaches to the implied freedom of political communication; while in Re Canavan, which attracted huge public interest, the court's unanimous decision adhered to an interpretation of section 44 of the Constitution according to its "ordinary and natural meaning". In Wilkie v Commonwealth the Court held that expenditure for the Australian Marriage Law Postal Survey had been approved by Parliament and was the collection of "statistical information" that could be conducted by the Australian Bureau of Statistics.
Composition of the court
The High Court of Australia is composed of seven Justices: the Chief Justice of Australia and six other Justices. Their salary is determined by the Remuneration Tribunal, an independent statutory authority. Since 1 July 2017, the Chief Justice has received an annual salary of $584,520 and the other Justices have received $530,440.
Appointments are officially made by the Governor-General in Council. In practice, appointees are nominated by the Prime Minister, on advice from the Cabinet, particularly from the Attorney-General for Australia. For example, four Justices were appointed while Andrew Fisher was Prime Minister, but it was largely on Attorney-General Billy Hughes' authority that the candidates were chosen. Since 1979, the Attorney-General has been required to consult with the attorneys-general of the states and territories of Australia about appointments to the court. The process was first used in relation to the appointment of Justice Wilson, and has been generally successful, despite the occasional criticism that the states merely have a consultative, rather than a determinative, role in the selection process.
There are no qualifications for Justices in the Constitution (other than that they must be under the compulsory retirement age of 70). The High Court of Australia Act 1979 requires that appointees have been a judge of a federal, state or territory court, or that they have been enrolled as a legal practitioner for at least five years with either the High Court itself or with a state or territory Supreme Court. There are no other formal requirements.
The appointment process stands in stark contrast with the highly public selection and confirmation process for justices of the Supreme Court of the United States. While there are people who are critical of the secrecy of the process and who advocate a more public method for appointments, there are relatively few who dispute the quality of appointees. Three Chief Justices (Sir Adrian Knox, Sir John Latham and Sir Garfield Barwick) had previously been conservative politicians prior to their appointment. However, there is frequent criticism of Barwick's intervention in the 1975 Australian constitutional crisis, when he gave advice to Governor-General Sir John Kerr. On the other side of politics, Labor politicians Dr H. V. Evatt QC, Sir Edward McTiernan and Lionel Murphy QC were also appointed to the High Court; Murphy, Attorney-General in the Whitlam government, was criticised by the conservative side at the time of his appointment but after a decade in office had risen, on occasion, to the heights of Acting Chief Justice. His reputation was gravely damaged in 1985 after illegal police phone-tapping led to charges that he had attempted to pervert the course of justice. He was eventually acquitted of all charges.
The first three justices of the High Court were Chief Justice, Sir Samuel Griffith, Justice Sir Edmund Barton, and Justice Richard Edward O'Connor. There were a number of possible candidates for the first bench of the High Court. In addition to the eventual appointees, names which had been mentioned in the press included two future Justices of the court, Henry Higgins and Isaac Isaacs, along with Andrew Inglis Clark, Sir John Downer, Sir Josiah Symon and George Wise. (Crucially, all of the above had previously served as politicians, with only Griffith and Inglis Clark possessing both political and judicial experience.) Barton and O'Connor were both members of the federal parliament and both from the government benches; indeed Barton was Prime Minister. Each of the eventual appointees had participated in the drafting of the Constitution and had intimate knowledge of it. All three were described as conservative and their jurisprudence was very much influenced by English law, and in relation to the Constitution, by United States law.
Expansion of composition
In 1906, at the request of the Justices, two more seats were added to the bench, with Isaacs and Higgins the appointees. After O'Connor's death in 1912, an amendment to the Judiciary Act 1903 expanded the bench to seven. For most of 1930 two seats were left vacant due to monetary constraints placed on the court by the Depression. The economic downturn had also led to a reduction in litigation and consequently less work for the court. After Sir Isaac Isaacs retired in 1931, his seat was left empty, and in 1933 an amendment to the Judiciary Act officially reduced the number of seats to six. However, this led to some decisions being split three-all. With the appointment of William Webb in 1946, the number of seats returned to seven, and since then the court has had a full complement of seven Justices. As of 2015 there have been 52 Justices, twelve of whom have been Chief Justice.
Recent developments in composition
Current Justices Susan Kiefel, Virginia Bell and Michelle Gordon are the third, fourth and fifth women to sit on the bench, after Justices Mary Gaudron and Susan Crennan. There are three women sitting concurrently on the bench, alongside four men. In 2017, Justice Kiefel became the first woman to be appointed Chief Justice.
More than half of the Justices, twenty-six, have been residents of New South Wales (with twenty-four of these graduates of Sydney Law School). Thirteen have been from Victoria, eight from Queensland and four from Western Australia. No Justices have been residents of South Australia, Tasmania or any of the territories. The majority of the Justices have been from Protestant backgrounds, with a smaller number from Catholic backgrounds. Sir Isaac Isaacs was of Polish/Jewish background and current Justice James Edelman is also Jewish: they have been the only representatives on the Court of any other faith. Many Justices have not indicated whether they have religious views.
Michael Kirby was the first openly gay justice in the history of the Court; his replacement, Virginia Bell, is the first lesbian, who has been an active campaigner for gay and lesbian rights and was one of the participants in the first Sydney Gay and Lesbian Mardi Gras in 1978.
Almost all judges on the High Court have taken silk as a Queen's Counsel (QC), King's Counsel (KC) or Senior Counsel (SC) before appointment. The exceptions are: Justice Sir Hayden Starke, Justices Sir Edward McTiernan, Sir William Webb, Sir Cyril Walsh, Michael Kirby, Robert French and James Edelman.
From the retirement of Ian Callinan in 2007 until the appointment of Stephen Gageler in 2012, every justice of the High Court had prior judicial experience (serving on state supreme courts or the Federal Court of Australia) for the only time in its history. Although 13 justices of the Court had previously served in state, colonial or federal Parliaments, no parliamentarian has been appointed to the Court since Lionel Murphy's appointment in 1975.
The Chief Justice and each of the Justices engage associates to assist them in the exercise of their judicial functions. At present, all members of the High Court engage two associates for one-year terms. In addition, the Chief Justice is assisted by an employee of the library as a legal research officer. The role of the associate is broadly equivalent to that of a law clerk of the Supreme Court of the United States. Depending on the judge, an associate's responsibilities will typically include legal research, assistance in preparation for oral arguments, tipping in court during oral argument, editing judgments and assisting with extrajudicial functions, such as speechwriting. Associates generally will have graduated with first class honours, at or near the top of their class, from a leading law school. Associates will typically also have research experience (and often experience working for a law firm or university or another court). Accordingly, competition for associate positions is very high with hundreds of applications being received annually.
In the 1950s, Prime Minister Robert Menzies established a plan to develop Canberra and construct other important national buildings. A 1959 plan featured a new building for the High Court on the shore of Lake Burley Griffin, next to the location for the new Parliament House and the National Library of Australia. This plan was abandoned in 1968 and the location of the Parliament was moved, later settling on the present site on Capital Hill.:ch 4
In March 1968, the government announced that the court would move to Canberra.:ch 4 In 1972 an international competition was held attracting 158 entries. In 1973 the firm of Edwards Madigan Torzillo Briggs was declared the winner of the two-stage competition. Architect Chris Kringas was the Principal Designer and Director in charge working with Feiko Bouman. In March 1975, only one month before construction began, Kringas died, aged 38. Following his death, Feiko Bouman, Hans Marelli and Colin Madigan supervised the construction of the design. The constructed building is largely identical to the 1973 competition design.
Construction began in April 1975 on the shore of Lake Burley Griffin, in the Parliamentary Triangle. The site is just to the east of the axis running between Capital Hill and the Australian War Memorial. The High Court building houses three courtrooms, Justices' chambers, and the Court's main registry, library, and corporate services facilities. It is an unusual and distinctive structure, built in the brutalist style, and features an immense public atrium with a 24-metre-high roof. The neighbouring National Gallery was also designed by the firm of Edwards Madigan Torzillo and Briggs. There are similarities between the two buildings in material and style but significant differences in architectural form and spatial concept. The building was completed in 1980 and the majority of the court's sittings have been held in Canberra since then.
The High Court and the National Gallery Precinct were added to the Australian National Heritage List in November 2007.
The High Court makes itself generally available to the public through its own website. Judgment Alerts, available on the Court's website and by email with free subscription, provide subscribers with notice of upcoming judgments (normally a week beforehand) and, almost immediately after the delivery of a major judgment, with a brief summary of it (normally not more than one page). All of the Court's judgments, as well as transcripts of its hearings since 2009 and other materials, are made available, free of charge, through the Australasian Legal Information Institute. The Court has recently established on its website an "eresources" page, containing for each case its name, keywords, mentions of relevant legislation and a link to the full judgment; these links go to the original text from 2000 onward, scanned texts from 1948 to 1999 and facsimiles from the Commonwealth Law Reports for their first 100 volumes (1903 to 1959); there are also facsimiles of some unreported judgments (1906-2002). Since October 2013, audio-visual recordings of full-court hearings held in Canberra have been available on its website.
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The High Court of Australia is the highest court of appeal
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Recommendation 19—1. The Attorney-General should consult with the Minister for Foreign Affairs and Trade regarding the feasibility of terminating the treaty between Australia and Nauru, which provides for certain appeals to be brought to the High Court from the Supreme Court of Nauru. If termination is considered feasible, the Nauru (High Court Appeals) Act 1976 should be repealed.
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|Wikimedia Commons has media related to High Court of Australia.|
- High Court of Australia official website
- High Court Documentary, a short documentary on the High Court and its building.
- The Highest Court Documentary film, 1998, DVD. Only film ever permitted to be made of the High Court in session, before video recordings of its proceedings.
- Judiciary Act 1903 (Cth) in ComLaw
- High Court of Australia Act 1979 (Cth) in ComLaw