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17 May 2022

The High Court of Australia is the highest court in Australia, hence the name. It is first named in Section 71 of the Constitution. Although the Constitution does not say that the High Court is the highest court in the country, the fact that it is the only Australian court named in the Constitution, and its original and appellate jurisdiction is outlined in Chapter III of the Constitution, means that it is taken to be the highest court. The only exception here is the Judicial Committee of the Privy Council, which we will look at in the next article.

Although the authority of the High Court is derived from the Constitution, the High Court itself was not established until 1903, with the passage of the Judiciary Act 1903 (Cth). The High Court of Australia Procedure Act 1903 (Cth) was passed shortly afterwards, though it has since been replaced by the High Court of Australia Act 1979 (Cth). One year after the passage of the latter Act, the High Court took up permanent residence in Canberra, in accordance with Section 14. However, the High Court retains some old English legal traditions, like the notion of ‘going on circuit,’ and so often sits outside of the High Court Building in Canberra, as covered by Section 15. Generally, when the High Court goes on circuit it will sit in the capital cities of the Northern Territory and the states, using the chambers of the Supreme Courts of those jurisdictions.

Like the state and territory Supreme Courts, the High Court possesses original and appellate jurisdiction. However, unlike the Supreme Courts, the High Court is not divided between a Trial Division and Appeals Division. The jurisdiction of the High Court is found in the Constitution and the Judiciary Act 1903 (Cth). The appellate jurisdiction found in the Constitution lies in Section 73. Under subsection (i), the High Court has appellate jurisdiction over any matters that it also has original jurisdiction. This means that if one High Court justice hears an original trial, a Full Court can hear the appeal. This operates in the same way as the Full Court of the Federal Court of Australia, with three justices, hearing appeals from the Federal Court of Australia, with one justice. Subsection (i) is affirmed by Section 34(1) of the Judiciary Act 1903 (Cth). Subsection (ii) gives the High Court appellate jurisdiction over any matters decided by any federal court or Supreme Court. Subsection (iii) relates to the Inter-State Commission, which no longer exists, so is not relevant.

Sections 75 and 76 of the Constitution govern the original jurisdiction of the High Court. Section 75(i) grants authority over matters arising under treaties. Section 75(ii) grants authority over cases involving consuls and ambassadors from other countries. Section 75(iii) grants authority over matters involving the federal government, or a person who is suing or being sued by the Commonwealth. Similarly, Section 75(iv) grants authority over cases between two or more States, residents of different States, or a State and a resident of another State. Section 75(v) covers matters involving Commonwealth civil servants. Section 38 of the Judiciary Act 1903 (Cth) states that all of these are the exclusive jurisdiction of the High Court. Section 76 original jurisdiction is jurisdiction not outright granted to the High Court; rather, Parliament must choose to grant it by legislation. Section 30(a) of the Judiciary Act 1903 (Cth) grants jurisdiction over constitutional law,1 and Section 30(c) grants jurisdiction over indictable offences, where there is a jury. These fall under Section 76(i) and (ii) of the Constitution, respectively. Original jurisdiction can be granted over specific matters mentioned in legislation, per Section 76(ii).

Whenever possible, the High Court will sit with one, three, five, or all seven judges hearing a case. If a case can be heard in the High Court’s original jurisdiction and then appealed within the High Court, it will generally be heard by a single judge at first instance. Appeals will be heard by a Full Court of at least three judges. The more judges that hear a case, the more important it is. It thus follows that constitutional law cases, which are the most important cases that can be heard, must be heard by all seven judges. This is affirmed in Section 23(1) of the Judiciary Act 1903 (Cth), which states that if less than seven judges are present, at least three must agree. However, this still allows for a 3:3 tie. In that case, Section 23(2)(b) comes into effect, stating that the judgment of the Chief Justice, or in their absence, the most senior Justice, will be affirmed. However, constitutional cases with a 3:3 split will be seen to have less authority than those with a 4:3 split, so won’t have much weight as precedent. This was the case during the tenures of Isaacs CJ and Gavan Duffy CJ, where both were plagued with health problems, and so were often absent. In appeal cases, Section 23(2)(a) operates to affirm the verdict given by the court whose decision is being appealed, if there is a 3:3 split. Long-time readers may remember that this was the case in Queensland v Congoo (2015) 256 CLR 259, an important native title case that I covered in Native Title And Indigenous Sovereignty In 21st Century Australia.

Unlike in the USA, High Court judges, or indeed judges on the bench of any federal court, are not elected. According to Section 72(i) of the Constitution, they are appointed by the Governor-General in Council, meaning the Governor-General on the advice of the Prime Minister and Cabinet. This is affirmed in Section 5 of the High Court of Australia Act 1979 (Cth). Before the Governor-General appoints a new judge, the Commonwealth Attorney-General is to consult with the State Attorney-Generals first, per Section 6 of the High Court of Australia Act 1979 (Cth). Once Cabinet has made a decision, the Prime Minister will nominate a judge, who will then be appointed by the Governor-General. Under Section 7 of the High Court of Australia Act 1979 (Cth), for a person to be eligible for appointment they must either have a) been a judge sitting in another court or b) have served as a lawyer for five years. Although judges originally served for life, with two of the three original judges dying while part of the court, in 1977 Section 72 of the Constitution was amended to implement a mandatory retirement age of 70.

Although Australia’s judges are not elected, and so the process is not as politicised as it is in the USA, the appointment of High Court judges is nonetheless still political in nature, as it is the highest court in the land. Here are just a few examples of how political the High Court can be:

The High Court originally consisted of three judges, one Chief Justice and two Justices, as provided for in Section 71 of the Constitution. The original composition of the court was Chief Justice Samuel Griffith, who had previously served as both Premier and Chief Justice of Queensland, and also wrote the Criminal Code Act 1899 (Qld); Justice Edmund Barton, who resigned from the Prime Ministership to serve on the High Court; and Justice Richard O’Connor, who resigned from the Senate to serve on the High Court.2 All three men were framers of the Constitution. Originally, the High Court rulings were based on the intended, rather than actual or literal, meaning of the Constitution, because all three judges helped write it. The ‘reserved powers doctrine’ was created here, with implied inter-governmental immunities. The legislative powers of the Constitution were interpreted narrowly, to prevent infringing on pre-federation states’ rights and powers.3 However, the court was expanded to five members in 1906, joined by Justices Isaac Isaacs and Henry Higgins, who were both framers. This created a 3:2 split between the ‘federalists’ and ‘nationalists,’ as Isaacs and Higgins JJ belonged to a different ‘camp’ in the constitutional conventions of the 1890s.4 For those of you familiar with the founding of America, this could be compared to the Federalists and Anti-Federalists.5 When O’Connor J died in 1912, he was replaced by Justice Frank Gavan Duffy. Isaacs J, the un-official leader of the nationalists, became more dominant from this point, because Griffith CJ and Barton J were in the minority. In 1913, Justices George Rich6 and Charles Power joined the High Court. Griffiths CJ retired in 1919, before dying the next year, and was replaced by Chief Justice Adrian Knox. Barton J died in office in 1920, and was replaced by Justice Hayden Starke. That same year, the High Court heard the case Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, and removed the reserved powers doctrine, because all were nationalists, and so preferred a strong Commonwealth government. The Engineers Case also saw a more literal approach taken to interpreting the Constitution.

Knox CJ, who replaced Griffith CJ, had served in the New South Wales Parliament during the 1890s. When Knox CJ retired, Isaacs J became Chief Justice for a year, retiring because of health problems. Isaacs CJ had served as Attorney-General during Prime Minister Deakin’s second term. It was not until Gavan Duffy J succeeded Isaacs CJ that the Chief Justice had not already served as an elected politician at some level. This demonstrates the problem that Australia has continued to have over the separation of powers. Often it is discussed in terms of an overlap between the executive and legislature, but without any oversight over court appointments, this problem also exists with the judiciary. Gavan Duffy CJ was replaced by John Latham, who had previously served as Attorney-General, Minister of Foreign Affairs, and Minister for Industry. He joined the High Court a year after leaving Parliament, and was nominated by the same Prime Minister that he had been a Minister under. As we saw in The Australian Government #12, Latham CJ would go on to be the only High Court judge to find the Menzies government’s banning of the Communist Party to be constitutional, in Australian Communist Party v Commonwealth (1951) 83 CLR 1. Menzies and Latham CJ had both served in the Cabinet of Prime Minister Joseph Lyons, with Menzies actually replacing Latham CJ as MP for the division of Kooyong, after Latham CJ retired. When Latham CJ left the High Court, Justice Owen Dixon became Chief Justice. Dixon J was appointed to the High Court in 1929, on the advice of Attorney-General John Latham, his close friend.7 Although there have been controversial appointments since then, after World War II the situation became more stable.

The common law legal systems that are most commonly compared to Australia are the UK, Canada, New Zealand, and the USA. All but the USA are part of the Commonwealth of Nations, which is all that remains of the British Empire. However, the Supreme Court of the United States (SCOTUS) is in many ways the most similar to the High Court. The High Court and SCOTUS both have appellate and original jurisdiction. Although judges are appointed differently, these appointments are often political in nature. In contrast, the UK’s Privy Council and New Zealand’s Supreme Court only have appellate jurisdiction. And only the High Court and SCOTUS hear constitutional cases, as neither the UK nor New Zealand has a proper written Constitution. Although Canada’s Supreme Court has appellate and original jurisdiction, its Constitution is spread across several different laws, and the court is a combination of common law and civil law.8 So Australia’s legal system, although as explored in The Australian Government #13, is as a whole more similar to the British system, the High Court itself is more akin to SCOTUS, demonstrating once again the hybrid nature of Australia’s political and legal systems.

Footnotes

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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