High Court of Australia
The High Court of Australia is the final court of appeal in Australia, the highest court in the Australian court hierarchy. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and interprets the Constitution of Australia. The High Court is mandated by Section 71 of the Constitution, which vests the judicial power of the Commonwealth of Australia in it. The court was constituted in 1903 by the Judiciary Act 1903.
Role of the court
The High Court exercises both original jurisdiction (cases which originate in the High Court) and appellate jurisdiction (appeals made to the High Court from other courts). Unlike other high courts, such as Supreme Court of the United States (though federal courts do have the ability to shape federal common law), the High Court is the court of final appeal for the whole of Australia with the ability to declare the common law for the whole of Australia, not just the state or territory in which the matter arose. As such, the court is able to develop the common law consistently across all of the states and territories. This role, alongside its role in constitutional interpretation, is one of the court's most significant. As 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."[1]
This broad array of jurisdiction has enabled the High Court to take a leading role in Australian law, and has contributed to a consistency and uniformity among the laws of the different states.[2]
Original jurisdiction
The original jurisdiction of the High Court refers to matters which 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":
- (i) arising under any treaty
- (ii) affecting consuls or other representatives of other countries
- (iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party:
- (iv) Between States, or between residents of different States, or between a State and a resident of another State:
- (v) 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, 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:
- (i) arising under the constitution or involving its interpretation
- (ii) arising under any laws made by the Parliament
- (iii) of admiralty and maritime jurisdiction
- (iv) relating to the same subject-matter claimed under the laws of different states
Constitutional matters, referred to in s76(i), have been conferred to the High Court by section 30 of the Judiciary Act 1903. However, the inclusion of constitutional matters in s76, 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 s75(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 s76 rather than s75 as "an odd fact of history."[3] 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.
The requirement of "a matter" in section 75 and section 76 of the constitution means that a concrete issue must need to be resolved, and the High Court cannot give an advisory opinion.
Appellate jurisdiction
The High Court's appellant jurisdiction is defined under Section 73 of the Constitution. The High Court can hear appeals from the Supreme Courts of the States, from any federal court or court exercising federal jurisdiction (such as the Federal Court of Australia), and from decisions made by one or more Justices exercising the original jurisdiction of the court.
However, section 73 allows the appellant 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 only granted where a question of law is raised which 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 to be a general court of appeal.
The High Court and the Privy Council
The issue of appeals from the High Court to 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 final wording of section 74 prohibited appeals on constitutional matters involving disputes about the limits inter se of Commonwealth or state powers (about), except where the High Court certified the appeal. It did so only once, in the case of Colonial Sugar Refining Co v Attorney-General (Commonwealth). After that case, in which the council refused to answer the constitutional questions put to it, the High Court never certified another inter se appeal.[4] Indeed, in the case of Kirmani v Captain Cook Cruises Pty Ltd, in 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, or in Viro v The Queen), by using a legal fiction which stated that different common law can apply to different circumstances.[5] However, in other cases, the Privy Council enforced its decisions, overruling decisions by the High Court. In Parker v The Queen, for example, Chief Justice Owen Dixon led a unanimous judgment which rejected a decision by the House of Lords in DPP v. Smith, saying that "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."[6]
Section 74 did provide that the parliament could make laws to prevent appeals to the 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. In 1986, with the passing of the Australia Acts by both the Imperial Parliament and the Parliament of Australia (with the ratification of the States), all appeals to the Privy Council were cut off, including appeals from state courts.
History
The genesis of the court can be traced back to the mid 19th century. Before the establishment of the High Court, appeals from the state Supreme Courts could only be made to the Judicial Committee of the Privy Council, which involved the great expense of physically travelling to London. As such, some politicians in the colonies wanted to have a new court which could travel between the colonies hearing appeals.
Following Earl Grey's 1846 proposal for federation of the Australian colonies, a 1849 report from the Privy Council of the United Kingdom suggested that a national court be created.[7] 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 which 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.[8]
At an inter-colonial conference in 1870 in Melbourne, Victoria, the idea of an inter-colonial court was again raised, and subsequently a Royal Commission was established in Victoria, to investigate options not only for establishing a court of appeal, but 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).[8]
In 1880, another inter-colonial conference was convened, which proposed the establishment of an Australasian Court of Appeal. This conference was more firmly focused 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.[8] 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.
Constitutional Conventions
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 would also be a court of appeal from the state Supreme Courts. The draft effectively removed appeals to the Privy Council, only allowing them if the British monarch gave leave to appeal, and not allowing appeals at all in constitutional matters.
This draft was largely the work of Samuel Griffith,[4] 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 only provided that the parliament could establish a court.[7]
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.[4] Some politicians, such as Dibbs, supported the petitioners, but others, including Alfred Deakin, supported the design of the court. Despite the debate, the portions of the draft dealing with the court remained largely unchanged, as the delegates focused on different matters.
When the draft was approved by the colonies, it was taken to London in 1899, for the assent of the British Imperial Parliament. The Secretary of State for Colonial Affairs, Joseph Chamberlain, had altered the draft, allowing much wider rights of appeal to the Privy Council. After much negotiation, a compromise was reached, in the form of the current text of section 74, which allows the monarch to grant leave to appeal, and allowed some appeals directly from state Supreme Courts (a right which has subsequently been removed).
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 straight away; it was necessary for the Parliament 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.[4]
In 1902, the then Attorney-General Alfred Deakin introduced the Judiciary Bill 1902 into the parliament. Although Deakin and Griffith had produced a draft bill as early as February 1901, it was continually delayed by opponents in the parliament. 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 constituted of five judges, specially selected to the court. Opponents 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.[7] 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."[9]
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 Samuel Griffith and Justices Edmund Barton and Richard O'Connor were appointed on 5 October of that year. On the 6 October, the court held its first sitting in the Banco Court in the Supreme Court of Victoria.
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 separate courtroom was built in Little Bourke Street. Also in this building was the court's principal registry. The court also sat regularly in Sydney, where it was located in an extension on the side of the Criminal Courts in the suburb of Darlinghurst.
The court also 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. Alfred 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 only occur 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 in order to save costs.
During World War II, the court faced a period of change. The Chief Justice, John Latham, was the Australian ambassador to Japan from 1940 to 1941, before the commencement of the Pacific War. Justice Owen Dixon was also absent for several years, while he served as Australia's ambassador to Washington. 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.
Post-war period
From 1952, with the appointment of 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.[10] Garfield Barwick, who was Attorney-General from 1958 to 1964, and from then till 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 the 1950s, the then Prime Minister Robert Menzies had established a plan to develop Canberra, and construct more important national buildings. In 1959, a plan featured a new building for the High Court on the shores 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. In March 1968, the government announced that the court would move to Canberra and in 1972 a competition was held for designs.
Construction began in 1975, on a site 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 building was designed by Edwards Madigan Torzillo and Briggs Pty Ltd and constructed between 1975 and 1980. 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 High Court building houses three courtrooms, Justices' chambers, and the Court's main registry, library, and corporate services facilities. The building was completed in 1980, and the majority of the court's sittings have been held in Canberra since then.
Recent history
In 1977, the referendum on retirement of judges was successful, which altered the Constitution to require that all High Court justices must retire when they turned seventy. In 1979, after campaigning from Chief Justice Garfield Barwick, the High Court of Australia Act 1979 was passed, granting the court the ability to manage its own affairs, including control over court personnel.
In 1989, video hearings were introduced, to allow the justices in Canberra to hear cases in places such as Darwin, Northern Territory, where the court does not travel to visit.
The High Court celebrated its centenary on 6 October 2003. A special session was held in the Banco Court of the Supreme Court of Victoria, where a hundred years earlier, the court had first sat.
Composition of the court
The High Court is composed of seven Justices, the Chief Justice of Australia and six other (puisne) Justices.
| Name | State | Date appointed | Mandatory retirement | Prime Minister at time of appointment | Previous judicial posting |
|---|---|---|---|---|---|
| Chief Justice Murray Gleeson | New South Wales | 22 May, 1998 | 30 August, 2008 | John Howard, Liberal Party of Australia | Supreme Court of New South Wales |
| Justice William Gummow | New South Wales | 21 April, 1995 | 9 October, 2012 | Paul Keating, Australian Labor Party | Federal Court of Australia |
| Justice Michael Kirby | New South Wales | 6 February, 1996 | 18 March, 2009 | Paul Keating, Australian Labor Party | Supreme Court of New South Wales |
| Justice Kenneth Hayne | Victoria | 22 September, 1997 | 5 June, 2015 | John Howard, Liberal Party of Australia | Supreme Court of Victoria |
| Justice Ian Callinan | Queensland | 3 February, 1998 | 1 September, 2007 | John Howard, Liberal Party of Australia | None (barrister) |
| Justice John Dyson Heydon | New South Wales | 1 February, 2003 | 1 March, 2013 | John Howard, Liberal Party of Australia | Supreme Court of New South Wales |
| Justice Susan Crennan | Victoria | 1 November, 2005 | 2015 | John Howard, Liberal Party of Australia | Federal Court of Australia |
The first three justices of the High Court were:
- Chief Justice, Sir Samuel Griffith
- Justice Sir Edmund Barton
- 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, Griffith, Barton and O'Connor, 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, Josiah Symon and George Wise. 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.
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 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.
However, the composition of the court has changed over that time. As of 2005 there have been forty-five Justices, eleven of whom have been Chief Justice. Current Justice Susan Crennan is only the second woman to sit on the bench, after Justice Mary Gaudron.
More than half of the Justices, twenty-four, have been residents of New South Wales. Thirteen were from Victoria, six from Queensland and two from Western Australia. No Justices have been residents of South Australia or 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, the only representative of any other faith. He also remains the only High Court Justice from a non Anglo-Celtic background.
Appointment process
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 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.
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. Although three of the Chief Justices (Adrian Knox, John Latham and Garfield Barwick) were conservative politicians at the time of their appointment, and were appointed by conservative governments, their political views are not considered to have interfered with their performance on the court, and their talent is rarely questioned. However, there is frequent criticism of Barwick's intervention in the Australian constitutional crisis of 1975, when he gave advice to Governor-General John Kerr. On the other side of politics, Labor politicians H.V. Evatt and Lionel Murphy were also appointed to the High Court; Murphy's appointment was controversial at the time and his reputation was gravely damaged in 1985 by charges that he had attempted to pervert the court of justice, although he was eventually acquitted.
References
- ^ Owen Dixon (1952). "Address on being sworn in as Chief Justice". Commonwealth Law Reports. 85: XIII.
- ^ Bennett, J.M. (1980). "Foreword by Sir Garfield Barwick". Keystone of the Federal Arch. Canberra: Australian Government Publishing Service. ISBN 0642048665.
- ^ Australian Law Reform Commission. "The Judicial Power of the Commonwealth". Australian Legal Information Institute. Retrieved 2006-03-19.
- ^ a b c d Hull, Crispin (2003). The High Court of Australia: celebrating the centenary 1903-2003. Lawbook Co. ISBN 0455219478.
- ^ "Murray Gleeson - The birth, life and death of Section 74". High Court of Australia. Retrieved 10 December.
{{cite web}}: Check date values in:|accessdate=(help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ "Parker v The Queen". Australasian Legal Information Institute. Retrieved 10 December.
{{cite web}}: Check date values in:|accessdate=(help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help) - ^ a b c Williams, John (2003). One hundred years of the High Court of Australia. King's College, London. ISBN 185507124X.
- ^ a b c Bennett, J.M. (1980). Keystone of the Federal Arch. Canberra: Australian Government Publishing Service. ISBN 0642048665.
- ^ Alfred Deakin (1902). "Judiciary Bill, second reading". Commonwealth Parliamentary Debates. 8: 10967.
- ^ "About the High Court - History of the High Court". High Court of Australia. Retrieved 10 December.
{{cite web}}: Check date values in:|accessdate=(help); Unknown parameter|accessyear=ignored (|access-date=suggested) (help)
- Blackshield, Coper & Williams (eds), The Oxford Companion to the High Court of Australia (Oxford University Press, 2001) ISBN 0195540220
See also
- Australian court hierarchy
- Judiciary Act 1903
- Judiciary of Australia
- Law of Australia
- List of High Court of Australia cases
- List of Judges of the High Court of Australia
