High Court entrance.
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 in it the
judicial power of the Commonwealth of Australia. The court was constituted 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 the
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 interpret 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, 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:
★ (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 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."
[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 appellate 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 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 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 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 2 or 3 judges). That is, Court exercises the power to decide which appeal cases it will consider.
Nauru
Nauru is the only country from which a route of appeal lies to an Australian court: the High Court is able to hear appeals from all decisions of the
Supreme Court of Nauru. From
1967 until
30 January 1968, when Nauru gained independence from its
United Nations trusteeship, Australian legislation gave the High Court jurisdiction to hear appeals from Nauruan courts, although no appeals were heard during this time.
[4] On
6 September 1976, the Nauruan and Australian governments agreed to reinstate the avenue of appeal. The ''
Nauru (High Court Appeals) Act 1976'', which took effect on
21 March 1977, gave the jurisdiction to the High Court.
As of 2006, only three cases have been appealed from the Supreme Court of Nauru to the High Court, ''DPP (Nauru) v Fowler''
[5] (in
1984), ''Amoe v DPP (Nauru)''
[6] (in
1991) and ''
Ruhani v Director of Police''
[7] (in
2005). For some time there was doubt about whether the
Parliament of Australia actually had any power to confer the jurisdiction to hear appeals from Nauru on the High Court under the
Constitution of Australia, although in the first two appeals, the jurisdiction was not challenged.
4 A challenge did occur in the ''Ruhani'' case, with a majority of the High Court finding that the jurisdiction was valid.
[8]
The High Court and the Privy Council
High Court building
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, 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)''
[9] (1912). 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.
[10] Indeed, in the case of ''
Kirmani v Captain Cook Cruises Pty Ltd (No 2)''
[11] (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''
[12] (1967), or in ''
Viro v The Queen''
[13] (1978)), by using a
legal fiction which stated that different common law can apply to different circumstances.
[14] However, in other cases, the Privy Council enforced its decisions, overruling decisions by the High Court. In ''
Parker v The Queen''
[15] (1963), 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."
15
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. Appeals from the High Court to the Privy Council are now only theoretically possible in
''inter se'' matters with leave of the High Court under section 74 of the Constitution. The High Court has indicated it will not grant such leave in the future. 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), appeals to the Privy Council from state Supreme Courts were closed off, leaving the High Court as the only avenue of appeal.
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 be made only 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, an
1849 report from the
Privy Council of the United Kingdom suggested that a national court be created.
[16] 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.
[17]
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).
[17]
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.
[17] 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 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
Samuel Griffith,
[10] 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.
[16]
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.
[10] 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.
[10]
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.
[16] 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."[25]
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 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 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.
[26] 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.
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.
The justices of the court abandoned the wearing of wigs in 1988. Barristers continued and still continue to wear wigs in court.
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.
The Building
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. In
1972 an international competition was held attracting 158 entries. In 1973 the firm of Edwards Madigan Torzillo Briggs was declared the winners of the two-stage competition, with architect Chris Kringas as the Principal Designer leading the architectural team including Feiko Bouman and Rod Lawrence. Kringas tragically died only one month before construction began in 1975 aged 38. Architect Hans Marelli and Colin Madigan supervised the construction of the design.
High Court building.
Construction began in April
1975 and was completed in 1980 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, arguably the most dramatic space in Australian architecture. 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.
Jurisprudence
The legal history of the court is commonly summarised by reference to the
Chief Justice of the time.
Griffith court
Sir
Isaac Isaacs, Justice from 1906 and Chief Justice from 1930-1931.
As the first High Court, the court under Chief Justice
Samuel Griffith has 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
Isaac Isaacs and
H.B. Higgins in 1906, and the death of foundation Justice
Richard O'Connor, Griffith's influence began to decline.
[27]
The court was keen to establish its position at the top of the
Australian court hierarchy. In ''
Deakin v Webb''
[28] (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.
17
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''
[29] (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''
[30] (1803). That doctrine established that any attempt by the federal government to interfere with the legislative or executive power of the
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
federal parliament should be interpreted narrowly, to avoid intruding on areas of power traditionally exercise by the state parliaments. The concept was developed in such cases as ''
Peterswald v Bartley''
[31] (1904), ''
R v Barger''
[32] (1908) and the
Union Label case[33] (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."
27 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.
27
Knox, Isaacs and Gavan Duffy courts
Adrian Knox became Chief Justice on
18 October 1919, and less than three months later foundation Justice
Edmund Barton died, leaving no original members. The most significant case of the era was the
Engineers case[34] (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
federal parliament would gain increasing importance.
Some of the Knox court's early work related to the aftermath of
World War I. In ''
Roche v Kronheimer''
[35] (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.
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
puisne Justice and led the court in many decisions.
[36]
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% of cases in that time, and regularly gave short judgments or joint judgments with other Justices.
[37] 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''
[38] (1931), 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[39] (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.
Latham court
John Latham, before his appointment to the court, as Deputy Prime Minister and Minister for External Affairs in the
Lyons government.
The court under Chief Justice
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.
[40] 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''
[41] (1941) and ''de Mestre v Chisholm''
[42] (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[43] (1942), and upheld legislation allowing the proclamation of the
pacifist Jehovah's Witnesses religion as a subversive organisation, in the
Jehovah's Witnesses case[44] (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[45] (1948), and an attempt to establish a comprehensive medical benefits scheme in the
First Pharmaceutical Benefits case[46] (1945). However the court also famously struck down
Menzies Liberal government legislation banning the
Communist Party of Australia in the
Communist Party case[47] (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''
[48] (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''
[49] (1936).
Dixon court
Under Chief Justice
Owen Dixon, who was elevated to that role in
1952 after 23 years as a
puisne Justice, the court enjoyed its most successful period, with English judge,
Master of the Rolls Lord Denning, describing the time as the court's "Golden Age".
[50] 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.
50
While there were fewer cases which tested the limits of federal power, which was 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[51] (1956), and the court also upheld the continuing existence of the federal government's income tax scheme in the
Second Uniform Tax case[52] (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 of the Australian Constitution (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.
50
Barwick court
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[53] (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[54] (1975), upholding legislation asserting sovereignty over the
territorial sea; the
First[55] (1975) and
Second[56] (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''
[57] (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''
[58] (1974) and the
Petroleum and Minerals Authority case[59] (1975).
The Barwick court decided several infamous cases on
tax avoidance and tax evasion, almost always deciding in favour of the taxpayer. 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.
[60]
Gibbs court
Court 1 - High Court of Australia
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.
[61]
The Gibbs court made several important decisions in
Australian constitutional law. It fulfilled the promise of the
external affairs power, recognising that it could be used to implement
treaties into domestic law. In ''
Koowarta v Bjelke-Petersen''
[62] (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[63] (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[64] (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.
61
In
administrative law, the court expanded on the doctrines of
natural justice and
procedural fairness in ''
Kioa v West''
[65] (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[66] (1984), concerning
Lindy Chamberlain, and ''
A v Hayden''
[67] (1984), concerning the botched
ASIS exercise at the Sheraton Hotel in Melbourne.
Mason court
Main articles: Mason court
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
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''
[68] (1988), concerning the troublesome
section 92 of the Australian Constitution, 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 in order 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.
[69]
The most popularly significant case decided by the Mason court was the
Mabo case[70] (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."
69 Other controversial cases included the
War Crimes Act case[71] (1991), regarding the validity of the ''
War Crimes Act 1945''; ''
Dietrich v The Queen''
[72] (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''
[73] (1992), regarding the disputed election of
Phil Cleary; and
Teoh's case[74] (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''
[75] (1992), ''
Nationwide News v Wills''
[76] (1992) and ''
Theophanous v Herald and Weekly Times''
[77] (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)
[78] and ''
Trident General Insurance v McNiece''
[79] (1988), and made significant developments in
tort law, in cases such as ''
Rogers v Whitaker''
[80] (1992) and ''
Burnie Port Authority v General Jones''
[81] (1994).
Brennan court
High Court as seen over Lake Burley Griffin and the terrestrial globe
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 appointment of conservative Justices by the
Howard Liberal government created conflict with the more liberal Justices of the Mason era, but nevertheless the court decided many significant cases.
[82]
In ''
Ha v New South Wales''
[83] (1997) the court invalidated a
New South Wales tobacco licensing scheme, reining in the licensing scheme exception to the prohibition states levying
excise duties, contained in
section 90 of the Australian 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''
[84] (1995) and ''
Wilson v Minister for Aboriginal and Torres Strait Islander Affairs''
[85] (1998), the court developed the
persona designata doctrine, and in ''
Kable v Director of Public Prosecutions''
[86] (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''
[87] (1997) and ''
Levy v Victoria''
[88] (1997). It also decided several native title cases, including the controversial
Wik case[89] (1996).
Gleeson court
The Gleeson court in its present composition
was appointed Chief Justice in 1998.
The court under Gleeson's leadership, which
as of 2006 includes five appointees of the Howard government, is generally regarded as more conservative, favouring legalism in the tradition of the Dixon and Barwick courts. However, the court has not entirely shied away from principle and public policy in its decisions.
[90] In ''
Egan v Willis''
[91] (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''
[92] (1999), the court recognised Australia's emergence as a sovereign independent nation, finding that the
United Kingdom was a "foreign power".
However, in many cases the Gleeson court focused heavily on the text itself when interpreting the Constitution or a particular statute. In the
''Re Wakim; Ex parte McNally''[93] (the ''Cross-vesting Case'') (1999), the court struck down legislation vesting certain areas of federal jurisdiction in the Supreme Courts of the states. In ''
Al-Kateb v Godwin''
[94] (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.
The Gleeson court has decided a number of important native title cases, including ''
Yanner v Eaton''
[95] (1999), ''
Western Australia v Ward''
[96] (2002) and the
Yorta Yorta case[97] (2002). In
tort law, the court's significant decisions include ''
Perre v Apand Pty Ltd''
[98] (1999), concerning
negligence actions where there is only
pure economic loss as opposed to physical or mental injury, ''
Dow Jones v Gutnick''
[99] (2002), regarding
defamation on the
Internet, and ''
Cattanach v Melchior''
[100] (2003), a
wrongful life case involving a healthy child.
Perhaps the Gleeson court's most significant case has been one of its most recent, the
WorkChoices case[101] (2006), in which the court finally explicitly accepted a wide reading of the
corporations power, after years of gradual expansion following the
Concrete Pipes case53 (1971).
Composition of the court
Main articles: List of Justices of the High Court of Australia
The High Court is composed of seven Justices: the
Chief Justice of Australia and six other (
puisne) Justices. Justice Ian Callinan is due to retire on
September 1,
2007. He will be replaced by Justice
Susan Kiefel from
Queensland, who is currently a judge of the
Federal Court of Australia.
[102]
| Name | State | Date appointed | Mandatory retirement | Appointing Governor-General | Prime Minister at time of appointment | Previous judicial posting |
|---|
| Chief Justice Murray Gleeson | New South Wales | 22 May, 1998 | 30 August, 2008 | Sir William Patrick Deane | John Howard (Liberal) | Supreme Court of New South Wales |
| Justice William Gummow | New South Wales | 21 April, 1995 | 9 October, 2012 | William George Hayden | Paul Keating (Labor) | Federal Court of Australia |
| Justice Michael Kirby | New South Wales | 6 February, 1996 | 18 March, 2009 | William George Hayden | Paul Keating (Labor) | Supreme Court of New South Wales |
| Justice Kenneth Hayne | Victoria | 22 September, 1997 | 5 June, 2015 | Sir William Patrick Deane | John Howard (Liberal) | Supreme Court of Victoria |
| Justice John Dyson Heydon | New South Wales | 1 February, 2003 | 1 March, 2013 | Peter Hollingworth | John Howard (Liberal) | Supreme Court of New South Wales |
| Justice Susan Crennan | Victoria | 1 November, 2005 | 2015 | Michael Jeffrey | John Howard (Liberal) | Federal Court of Australia |
| Justice Susan Kiefel | Queensland | 3 September, 2007 | 2024 | Michael Jeffrey | John Howard (Liberal) | Federal Court of Australia |
The first bench of the High Court: Barton, Griffith & O'Connor seated, with court officials in the background. Photo taken at the first sitting of the court on 6 October 1903.
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 (with twenty-three of these graduates of
Sydney Law School). 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
Court 2 - High Court of Australia
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 of 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 by section 6 of the ''
High Court of Australia Act'' 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.
[103]
There are no qualifications for Justices in the
Constitution (other than that they must be under the retirement age of 70). The ''High Court of Australia Act'' 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.
[104]
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 course of justice, although he was eventually acquitted.
References
1. Address on being sworn in as Chief Justice, Owen Dixon, , , Commonwealth Law Reports, 1952
2. Keystone of the Federal Arch, , J.M., Bennett, Australian Government Publishing Service, 1980, ISBN 0-642-04866-5
3. The Judicial Power of the Commonwealth Australian Law Reform Commission
4. 'Nauru', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
5. ;
6.
7.
8. ''Ruhani v Director of Police''
9.
10. The High Court of Australia: celebrating the centenary 1903-2003, Hull, Crispin, , , Lawbook Co., 2003, ISBN 0-455-21947-8
11. ;
12. ;
13. ;
14. Murray Gleeson - The birth, life and death of Section 74
15. ;
16. One hundred years of the High Court of Australia, Williams, John, , , King's College, London, 2003, ISBN 1-85507-124-X
17. Keystone of the Federal Arch, , J.M., Bennett, Australian Government Publishing Service, 1980, ISBN 0-642-04866-5
18. Keystone of the Federal Arch, , J.M., Bennett, Australian Government Publishing Service, 1980, ISBN 0-642-04866-5
19. Keystone of the Federal Arch, , J.M., Bennett, Australian Government Publishing Service, 1980, ISBN 0-642-04866-5
20. The High Court of Australia: celebrating the centenary 1903-2003, Hull, Crispin, , , Lawbook Co., 2003, ISBN 0-455-21947-8
21. One hundred years of the High Court of Australia, Williams, John, , , King's College, London, 2003, ISBN 1-85507-124-X
22. The High Court of Australia: celebrating the centenary 1903-2003, Hull, Crispin, , , Lawbook Co., 2003, ISBN 0-455-21947-8
23. The High Court of Australia: celebrating the centenary 1903-2003, Hull, Crispin, , , Lawbook Co., 2003, ISBN 0-455-21947-8
24. One hundred years of the High Court of Australia, Williams, John, , , King's College, London, 2003, ISBN 1-85507-124-X
25. ''Judiciary Bill'', second reading, Alfred Deakin, , , Commonwealth Parliamentary Debates, 1902
26. About the High Court - History of the High Court
27. 'Griffith Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
28.
29. ;
30.
31. ;
32. ;
33.
34. ;
35. ;
36. 'Isaac Alfred Isaacs', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
37. 'Gavan Duffy Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
38. ;
39.
40. 'Latham Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
41. ;
42. ;
43.
44. ;
45. ;
46. ;
47. ;
48. ;
49. ;
50. 'Dixon Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
51. ;
52. ;
53. ;
54. ;
55. ;
56. ;
57. ;
58. ;
59. ;
60. 'Barwick Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
61. 'Gibbs Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
62. ;
63. ;
64. ;
65. ;
66. ;
67. ;
68. ;
69. 'Mason Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
70. ;
71. ;
72. ;
73. ;
74. ;
75. ;
76. ;
77. ;
78. ;
79. ;
80. ;
81. ;
82. 'Brennan Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
83. ;
84.
85.
86.
87.
88.
89.
90. 'Gleeson Court', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
91.
92. ;
93.
94. ;
95.
96.
97.
98.
99.
100.
101.
102. Hudson, Phillip, "Ruddock names new High Court judge", ''Sydney Morning Herald'', August 13, 2007. Accessed August 13, 2007.
103. 'High Court of Australia Act', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
104. 'Appointment of Justices', 'The Oxford Companion to the High Court of Australia' ISBN 0-19-554022-0
See also
★
Australian court hierarchy
★
Judiciary Act 1903
★
Judiciary of Australia
★
Law of Australia
★
List of High Court of Australia cases
★
List of Justices of the High Court of Australia
★
List of Justices of the High Court of Australia by time in office
★
List of Chief Justices of Australia by time in office
External links
★
Official High Court of Australia website
★
The Highest Court 58 min. Documentary film. Only film ever permitted to be made in the High Court. Filmed during the Brennan Court in 1998. Dir: Daryl Dellora. NSW Media Law Award. Features Justices Brennan (CJ), Dawson, Toohey, Gaudron, Gummow, McHugh, Kirby, Hayne and Callinan.
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