| High Court of Australia | |
|---|---|
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| 35°17′56″S149°08′09″E / 35.29889°S 149.13583°E /-35.29889; 149.13583 | |
| Established | 25 August 1903 (1903-08-25) |
| Jurisdiction | Australia |
| Location | Canberra,Australian Capital Territory |
| Coordinates | 35°17′56″S149°08′09″E / 35.29889°S 149.13583°E /-35.29889; 149.13583 |
| Composition method | Appointed by thegovernor-general on the advice of theattorney-general following the approval of theprime minister andCabinet |
| Authorised by | Australian Constitution s 71 |
| Appeals from |
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| Judge term length | Mandatory retirement at age 70[1] |
| Number of positions | 7, by statute |
| Website | www |
| Chief Justice of the High Court of Australia | |
| Currently | Stephen Gageler |
| Since | 6 November 2023 (2023-11-06) |
| Australian court hierarchy |
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| Federal Law Courts |
| Courts ofAustralian States and Territories |
TheHigh Court of Australia is theapex court of theAustralian legal system.[2] It exercisesoriginal andappellate jurisdiction on matters specified in theConstitution of Australia and supplementary legislation.
The High Court was established following the passage of theJudiciary Act 1903 (Cth).[3] Its authorityderives from chapter III of the Australian Constitution, which vests it (and other courts the Parliament creates) with thejudicial power of the Commonwealth.[4] Its internal processes are governed by theHigh Court of Australia Act 1979 (Cth).[5]
The court consists of seven justices, including achief justice, currentlyStephen Gageler. Justices of the High Court are appointed by thegovernor-general on the formaladvice of theattorney-general following the approval of theprime minister andCabinet.[6] They are appointed permanently until their mandatory retirement at age 70, unless they retire earlier.
Typically, the court operates by receiving applications for appeal from parties in a process calledspecial leave. If a party's application is accepted, the court will proceed to a full hearing, usually with oral and written submissions from both parties. After conclusion of the hearing, the result is decided by the court. The special leave process does not apply in situations where the court elects to exercise its original jurisdiction; however, the court typically delegates its original jurisdiction to Australia's inferior courts.
The court has resided inCanberra since 1980, following the construction of a purpose-builtHigh Court building, located in theParliamentary Triangle and overlookingLake Burley Griffin.[7]
Sittings of the court previously rotated between state capitals, particularlyMelbourne andSydney, and the court continues to regularly sit outside Canberra.
The High Court exercises bothoriginal andappellate jurisdiction.
SirOwen Dixon said on his swearing in as Chief Justice of Australia in 1952:[8]
The High Court's jurisdiction is divided in its exercise between constitutional and federal cases which loom so largely in the public eye, and the great body of litigation between man and man, or even man and government, which has nothing to do with the Constitution, and which is the principal preoccupation of the court
The broad jurisdiction of the High Court means that it has an important role in Australia's legal system.[9]
Its original jurisdiction is determined by sections 75 and 76 of Australia's Constitution. Section 75 confers original jurisdiction in all matters:
Section 76 provides that Parliament may confer original jurisdiction in relation to matters:
Constitutional matters, referred to in section 76(i), were conferred on the High Court by section 30 of theJudiciary Act 1903.[3] While the conferral of constitutional matters might be removed by amending the Judiciary Act, section 75(iii) (suing the Commonwealth) and section 75(iv) (conflicts between states) are broad enough that many constitutional matters would still be within original jurisdiction. The original constitutional jurisdiction of the High Court is now well established; theAustralian Law Reform Commission has described the reference to constitutional matters in section 76 rather than in section 75 as "an odd fact of history".[10] The1998 Constitutional Convention recommended an amendment to the constitution to prevent the possibility of the jurisdiction being removed by Parliament.
The word "matter" in sections 75 and 76 has been understood to mean that the High Court is unable to giveadvisory opinions.[11][12]
The court is empowered by section 73 of the Constitution to hear appeals from the supreme courts of the states and territories; as well as any court exercising federal jurisdiction.[Note 1] It may also hear appeals of decisions made in an exercise of its own original jurisdiction.[Note 2]
The High Court's appellate jurisdiction is limited by theJudiciary Act, which requires special leave to be granted before the hearing of an appeal.Special leave may only be granted where a question of law is raised which is of public importance, involves a conflict between courts or "is in the interests of the administration of justice".
Since November 2023, the High Court has adopted the practice of deciding the majority of special leave applications on the basis of written submissions only. In adopting this practice, the High Court also made the decision to publish decisions in special leave applications on its public website rather than in open court.[13]
Appeals to thePrivy Council in London were a notable controversy when the Constitution was drafted. Section 74 of the Constitution, as it was put to voters, stated that there would be no appeals to the Privy Council in any matter involving the interpretation of the federal or state constitutions.[Note 3][14]
However, section 74 as enacted by the Imperial Parliament instead only prohibited appeals on constitutional matters when they related to the respective powers of the states and the Commonwealth ("inter se" matters),[15] and even then allowed the High Court discretion to waive the prohibition by certifying cases as being approriate for appeal to the Privy Council. The High Court has used this discretion only once, in 1912,[Note 4] and in 1985, inKirmani v Captain Cook Cruises Pty Ltd (No 2), it denied certification and further declared that the discretion was "obsolete", that "such limited purpose as it had has long since been spent", and that it was "impossible to suppose" that the Court would ever use it again.[16]
No certificate was required to appeal constitutional cases not involvinginter se matters, such as in the interpretation of section 92 (relating to the freedom of inter-state commerce), and thus the Privy Council regularly heard appeals against High Court decisions.[17] 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.[18][19][20] Other times it followed English authority, and overruled decisions of the High Court.
This arrangement led to tensions between the High Court and the Privy Council. InParker v The Queen (1964), Chief Justice SirOwen Dixon led a unanimous judgment rejecting the authority of theHouse of Lords decision inDPP v Smith, writing, "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."[21] The Privy Council overturned this by enforcing the UK precedent upon the High Court the following year.[22]
Thirteen High Court judges have heard cases as part of the Privy Council.Sir Isaac Isaacs is the only judge to have sat on an appeal from the High Court, in 1936 after his retirement asGovernor-General of Australia.[23]Sir Garfield Barwick insisted on an amendment to Privy Council procedure to allow dissent;[24] however, he exercised that capacity only once in an appeal from Guyana to the Privy Council.[25] The appeals mostly related to decisions from other Commonwealth countries, although they occasionally included appeals from the supreme court of an Australian state.[26][27][28][29]
Section 74 allowed parliament to prevent appeals to the Privy Council. It did so in 1968 with thePrivy Council (Limitation of Appeals) Act 1968, which closed off all appeals to the Privy Council in matters involving federal legislation.[38] In 1975, thePrivy Council (Appeals from the High Court) Act 1975 closed all routes of appeal from the High Court with the exception of those cases in which High Court issued a certificate of appeal.[39]
In 1986, with the passing of theAustralia Acts by both the British and Commonwealth parliaments,[40][41] appeals to the Privy Council from state supreme courts were closed off, leaving the High Court as the only avenue of appeal.[42] In 2002,Chief JusticeMurray Gleeson said that the "combined effect" of the legislation and the announcement inKirmani "has been that section 74 has become a dead letter, and what remains of section 74 after the legislation limiting appeals to the Privy Council will have no further effect".[43]
On 6 September 1976, Australia andNauru, which was newly-independent from Australia, signed an agreement for the High Court to become Nauru's apex court.[Note 5] It was empowered to hear appeals from theSupreme Court of Nauru in both criminal and civil cases, but not constitutional matters.[44] There were a total of five appeals to the High Court under this agreement in the first 40 years of its operation. In 2017, however, this jumped to 13 appeals, most relating to asylum seekers.[45] At the time some legal commentators argued that this appellate jurisdiction sat awkwardly with the High Court's other responsibilities, and ought be renegotiated or repealed.[46][47] Anomalies included the need to apply Nauruan law and customary practice, and that special leave hearings were not required.[45]
Nauruan politicians[Note 6] had said publicly that the Nauruan government was unhappy about these arrangements.[48] Of particular concern was a decision of the High Court in October 2017, which quashed an increase in sentence imposed upon political protestors by the Supreme Court of Nauru.[45][49] The High Court had remitted the case to the Supreme Court "differently constituted, for hearing according to law".[49]
On Nauru's 50th anniversary of independence,Baron Waqa declared to parliament that "[s]everance of ties to Australia's highest court is a logical step towards full nationhood and an expression of confidence in Nauru's ability to determine its own destiny".[45] Justice MinisterDavid Adeang said that an additional reason for cutting ties was the cost of appeals to the High Court.[50] Nauru then exercised an option under its agreement with Australia to end its appellate arrangement with 90 days notice. The option was exercised on 12 December 2017 and the High Court's jurisdiction ended on 12 March 2018.[48] The termination did not become publicly known until after the Supreme Court had reheard the case of the protesters and had again imposed increased sentences.[51] In 2022, Australia passed legislation which removed the possibility for reinstatement of the appeal pathway.[52]
FollowingEarl Grey's 1846 proposal to federate the colonies, an 1849 report from the Privy Council suggested a national court be created.[53] In 1856, theGovernor of South Australia,Richard MacDonnell, suggested to theGovernment of South Australia that they consider establishing a court to hear appeals from the Supreme Courts in each colony. In 1860 theSouth Australian Parliament passed legislation encouraging MacDonnell to put the idea to the other colonies. However, onlyVictoria considered the proposal.[54]
At aMelbourne inter-colonial conference held in 1870, the idea of an inter-colonial court was again raised. Aroyal commission was established in Victoria to investigate options for establishing such a court, and a draft bill was put forward. This draft bill, however, completely excluded appeals to the Privy Council, causing a reaction in London which prevented any serious attempt to implement the bill through theBritish Imperial Parliament.[54]
Another draft bill was proposed in 1880 for the establishment of an Australasian court of appeal. The proposed court would consist of one judge from each of the colonial supreme courts, who would serve one-year terms.[Note 7][54] However, the proposed court allowed for appeals to the Privy Council, which was disliked by some of the colonies, and the bill was abandoned.
The idea of a federal supreme court was raised during theConstitutional Conventions of the 1890s. A proposal for a supreme court of Australia was included in an 1891 draft. It was proposed to enable the court to hear appeals from the state supreme courts, with appeals to the Privy Council only occurring on assent from theBritish monarch. It was proposed that the Privy Council be prevented from hearing appeals on constitutional matters.
This draft was largely the work ofSir Samuel Griffith,[55] then thePremier of Queensland. The attorney-general of TasmaniaAndrew Inglis Clark also contributed to the constitution's judicial clauses. Clark's most significant contribution was to give the court its own constitutional authority, ensuring aseparation of powers. The original formulation of Griffith,Barton andKingston provided only that the parliament could establish a court.[53]
The draft was later amended at various conventions.[Note 8] In Adelaide the court's proposed name was changed to be the "High Court of Australia".
Many people opposed the idea of the new court completely replacing the Privy Council. Commercial interests, particularly subsidiaries of British companies, preferred to operate under the unified jurisdiction of the British courts, and petitioned the conventions to that effect.[55] Others argued that Australian judges were of a poorer quality than British, and that the inevitable divergence in law that would occur without the oversight of the Privy Council would put the legal system at risk.[53]
Some politicians (e.g.George Dibbs) supported a retention of Privy Council supervision; whereas others, includingAlfred Deakin, supported the design of the court as it was.[55] Inglis Clark took the view that the possibility of divergence was a good thing, for the law could adapt appropriately to Australian circumstances.[53] Despite this debate, the draft's judicial sections remained largely unchanged.
After the draft had been approved by the electors of the colonies, it was taken to London in 1899 for the assent of the British Imperial Parliament. The issue of Privy Council appeals remained a sticking point however; with objections made bySecretary of State for the Colonies,Joseph Chamberlain, theChief Justice of South Australia,Sir Samuel Way, andSamuel Griffith, among others.[20] In October 1899, Griffith made representations to Chamberlain soliciting suggestions from British ministers for alterations to the draft, and offered alterations of his own.[20] Indeed, such was the effect of these and other representations that Chamberlain called for delegates from the colonies to come to London to assist with the approval process, with a view to their approving any alterations that the British government might see fit to make; delegates were sent, including Deakin, Barton andCharles Kingston, although they were under instructions that they would never agree to changes.[20]
After intense lobbying both in Australia and in the United Kingdom, the Imperial Parliament finally approved the draft constitution. The draft as passed included an alteration to section 74, in a compromise between the two sides. It allowed for a general right of appeal from the High Court to the Privy Council, but the Parliament of Australia could make laws restricting this avenue. In addition, appeals ininter se[Note 9] matters were not as of right, but had to be certified by the High Court.[20]
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The High Court was not immediately established after the Commonwealth of Australia came into being on 1 January 1901. Somemembers of the first Parliament, includingSir John Quick, then one of the leading legal experts in Australia, opposed legislation to set up the court. EvenH. 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.[55]
The thenAttorney-General Alfred Deakin introduced theJudiciary Bill to theHouse of Representatives in 1902. Prior efforts had been continually delayed by opponents in the parliament, and the success of the bill is generally attributed to Deakin's passion and persistence.[53] Deakin proposed that the court be composed of five judges, specially selected to the court. Opponents instead proposed that the court should be made up of state supreme court justices, taking turns to sit on the High Court on a rotation basis, as had been mooted at the Constitutional Conventions a decade before.[56] Deakin eventually negotiated amendments with theopposition, reducing the number of judges from five to three, and eliminating financial benefits such as pensions.
At one point, Deakin threatened to resign as Attorney-General due to the difficulties he faced.[53] In his three and a half hoursecond reading speech to theHouse of Representatives, Deakin said,[57]
The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power... It is properly termed the keystone of the federal arch... The statute stands and will stand on the statute-book just as in the hour in which it was assented to. But the nation lives, grows and expands. Its circumstances change, its needs alter, and its problems present themselves with new faces. [The High Court] enables the Constitution to grow and be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates.
Deakin's friend, painterTom Roberts, who viewed the speech from the public gallery, declared it Deakin's "magnum opus".[53] The Judiciary Act 1903 was finally passed on 25 August 1903, and the first three justices, Chief Justice Sir Samuel Griffith and justicesSir Edmund Barton andRichard O'Connor, were appointed on 5 October of that year. On 6 October, the court held its first sitting in theBanco Court in theSupreme Court of Victoria.
On 12 October 1906, the size of the High Court was increased to five justices, and Deakin appointedH. B. Higgins andIsaac Isaacs to the High Court. Following a court-packing attempt by the Labor Prime MinisterAndrew Fisher In February 1913, the bench was increased again to a total to seven.Charles Powers andAlbert Bathurst Piddington were appointed. These appointments generated an outcry, however, and Piddington resigned on 5 April 1913 after serving only one month as High Court justice.[58]
The High Court continued its Banco location inMelbourne until 1928, until adedicated courtroom was built inLittle Bourke Street, next to theSupreme Court of Victoria. That space provided the court's Melbourne sitting place and housed the court's principalregistry until 1980.[59] The court also sat regularly in Sydney, sharing space in the criminal courts ofDarlinghurst Courthouse, before a dedicated courtroom was constructed next door in 1923.[60]
The court travelled to other cities across the country, where it would use facilities of the respective supreme courts. 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 in February,Brisbane in June,Perth in September, and Adelaide in October. It has been said that Griffith established this schedule because those were the times of year he found the weather most pleasant in each city.
The tradition of special sittings remains to this day, although they are dependent on the court's caseload. There are annual sittings in Perth, Adelaide and Brisbane for up to a week each year, and sittings in Hobart occur once every few years. Sittings outside of these special occurrences are conducted in Canberra.
The court's operations were marked by various anomalies duringWorld War II. The Chief Justice,Sir John Latham, served from 1940 to 1941 as Australia's first ambassador to Japan; however, his activities in that role were limited by a pact Japan had entered with theAxis powers prior to his arrival inTokyo.[61]Owen Dixon was also absent for several years of his appointment, while serving as Australia's minister to the United States inWashington.[62]Sir George Rich acted as chief justice during Latham's absence.
From 1952, with the appointment of Sir Owen Dixon as chief justice, the court entered a period of stability. After World War II, the court's workload continued to grow, particularly from the 1960s onwards, putting pressures on the court.[63]Sir Garfield Barwick, who wasattorney-general from 1958 to 1964, and from then until 1981 chief justice, proposed that more federal courts be established, as permitted under the Constitution. In 1976 theFederal Court of Australia was established, with a general federal jurisdiction, and in more recent years theFamily Court andFederal Magistrates Court have been set up to reduce the court's workload in specific areas.
In 1968, appeals to the Privy Council in matters involving federal legislation were barred. In 1986, with the passage of theAustralia Acts direct appeals to the Privy Council from state Supreme Courts were also closed off.
The life tenure of High Court justices ended in 1977. A national referendum in May 1977 approved theConstitution Alteration (Retirement of Judges) 1977, which upon its commencement on 29 July 1977 amended section 72 of the Constitution so as require that all justices appointed from then on must retire on attaining the age of 70 years.[63][64]
TheHigh Court of Australia Act 1979 (Cth), which commenced on 21 April 1980, gave the High Court power to administer its own affairs and prescribed the qualifications for, and method of appointment of, its Justices.[63][5]
Historical periods of the High Court are commonly denoted by reference to the chief justice of the time, akin to that of theSupreme Court of Canada under theChief Justice of Canada. However, the chief justice is not always the most influential figure on the Court.[Note 10][65]
The first court under Chief Justice Griffith laid the foundations of Australia's constitutional law. The court was conscious of its position as Australia's new court of appeal, and made efforts to establish its authority at the top of Australia's court hierarchy. InDeakin v Webb (1904)[66] It criticised theVictorian Supreme Court for following a Privy Council decision about theConstitution of Canada instead of its own authority.[54]
In its early years Griffith and other federalists on the bench were dominant. Their decisions were occasionally at odds with nationalist judges such asSir Isaac Isaacs andH. B. Higgins in 1906. With the death of JusticeRichard O'Connor, in 1912; the nationalists achieved majority and Griffith's influence began to decline.[67]
The early constitutional law decisions of the Griffith court was influenced byUS constitutional law.[Note 11]
An important doctrine peculiar to the Griffith court was that of thereserved state powers.[Note 12] Under this doctrine, the Commonwealth parliament's legislative powers were to be interpreted narrowly; so as to avoid intruding on areas of power traditionally exercised by the state Parliaments prior to federation.[68]Anthony Mason has noted that this doctrine probably 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".[67]
Griffith and Sir Edmund Barton were frequently consulted by governors-general, including on the exercise of thereserve powers.[69]
Adrian Knox became chief justice on 18 October 1919. Justice Edmund Barton died soon after, leaving no original members. During the Knox court, Justice Isaacs Isaacs had strong influence.[70]
Under the Knox court theEngineers case was decided, ending the reserved state powers doctrine. The decision had lasting significance for the federal balance in Australia's political arrangements. Another significant decision wasRoche v Kronheimer, in which the court relied upon thedefence power to uphold federal legislation seeking to implement Australia's obligations under theTreaty of Versailles.[Note 13]
Sir Isaac Isaacs was Chief Justice for only forty-two weeks; he left the court to be appointedgovernor-general. He was ill for most of his term, and few significant cases were decided in this time.[70]
Sir Frank Gavan Duffy was Chief Justice for four years from 1931; but he was already 78 when appointed to the position. He was not influential, and only participated in 40% of the cases during his tenure. For the most part he gave short judgements, or joined in the judgements of his colleagues. His frequent absence resulted in many tied decisions which have no lasting value asprecedent.[71]
Important cases of this time include:
John Latham was elevated to Chief Justice in 1935. His tenure is most notable for the court's interpretation of wartime legislation, and the subsequent transition back to peace.[72]
Most legislation was upheld as enabled by thedefence power.[Note 17] TheCurtinLabor government's legislation was rarely successfully challenged, with the court recognizing a necessity that the defence power permit the federal government to govern strongly.
The court allowed for the establishment of a nationalincome tax scheme in theFirst Uniform Tax case, and upheld legislation declaring thepacifistJehovah's Witnesses denomination to be a subversive organisation.[Note 18]
Following the war, the court reigned in the scope of the defence power. It struck down several key planks of theChifley Labor government's reconstruction program, notably an attempt tonationalise the banks in theBank Nationalisation case (1948),[73] and an attempt to establish a comprehensive medical benefits scheme in theFirst Pharmaceutical Benefits case (1945).[74]
Other notable cases of the era include:
Owen Dixon was appointed Chief Justice in 1952, after 23 years as a Justice on the court.
During his tenure the court experienced what some have described as a "Golden Age". Dixon had strong influence on the court during this period. The court experienced a marked increase in the number of joint judgements, many of which were led by Dixon. The era has also been noted for the presence of generally good relations among the court's judges.[75]
Notable decisions of the Dixon court include:
During Dixon's time, the court came to adopt by majority several of the views he had expressed in minority years prior.[75]
Garfield Barwick was appointed Chief Justice in 1964.
Among other things, the Barwick court is known for controversially deciding several cases ontax avoidance and tax evasion, almost always deciding against the taxation office. Led by Barwick himself in most judgments, the court distinguished between avoidance (legitimately minimising one's tax obligations) and evasion (illegally evading obligations). The decisions effectively nullified the anti-avoidance legislation and led to the proliferation of avoidance schemes in the 1970s, a result which drew much criticism upon the court.[76]
Notable decisions of the Barwick court include:
Sir Harry Gibbs was appointed as Chief Justice in 1981.
Among the Gibbs court's notable jurisprudence is an interpretive expansion of the Commonwealth's legislative powers.[80] Scholars have also noted a tendency away from the traditions of legalism and conservatism that characterised the Dixon and Barwick courts.[80]
Notable decisions of the court include:
Sir Anthony Mason became Chief Justice in 1987.
The Mason court is known for being one of the most legally liberal benches of the court.[81] It was a notably stable court, with the only change in its bench being the appointment ofMcHugh followingWilson's retirement.
Some of the decisions of the court in this time were politically controversial.[Note 33] Scholars have noted that the Mason court has tended to receive "high praise and stringent criticism in equal measure".[82]
Notable decisions of the court include:
This era is also notable for originating Australia'simplied freedom of political communication jurisprudence; through the casesAustralian Capital Television Pty Ltd v Commonwealth andTheophanous.
SirGerard Brennan succeeded Mason in 1995.
The court experienced many changes in members and significant cases in this three year period.[83]
Notable decisions of the court include:
Murray Gleeson was appointed Chief Justice in 1998. The Gleeson Court has been regarded as a relatively conservative period of the court's history.[84]
Notable decisions of the court include:
Robert French was appointed Chief Justice in September 2008.
Notable decisions of the French court include:
Susan Kiefel was appointed Chief Justice in January 2017.
Legal scholars have noted a shift in judicial style within the Kiefel court to one that attempts broad consensus.[86] The frequency of dissenting judgements has decreased; and there have been relatively fewer decisions with a 4:3 split. Extrajudicially, Kiefel has expressed sympathy for judicial practices that maximise consensus and minimise dissent.[87]
Additionally, it has been noted that Kiefel, Keane, and Bell frequently deliver a joint judgement when a unanimous consensus is not reached; often resulting in their decisions being determinative of the majority. This recent practice of the court has been criticised by the scholarJeremy Gans, with comparisons drawn to theFour Horsemen era of the US Supreme Court.[86]
Notable decisions of the Kiefel court include:
Stephen Gageler was appointed Chief Justice in November 2023.
Notable decisions of the Gageler court include:
High Court Justices are appointed by theGovernor-General in Council.[93] The advice of the Council typically consists of theadvice of the prime minister assisted by theAttorney-General for Australia. Advice from the attorney-general is legally required by implication, because since 1979 the attorney-general has been required by statute to consult the attorneys-general of the states (but not the territories).[94] Some reformers have advocated for states to have a determinative role.[95]
Originally, no particular qualifications for appointment to the High Court were required by the Constitution or by statute. The only constitutional requirement is that the appointee be under the compulsory retirement age of 70.[96] Further qualifications were introduced by statute in 1979: that an appointee be a judge of a federal, state or territory court; or have been an Australian legal practitioner for at least five years.[97][98] Unlike members of theParliament, it is not necessary to be anAustralian Citizen and a member of the Court may be a dual citizen.[99]
The appointment process has been relatively uncontroversial.[Note 49] This has, however, been due in part to the opacity of the process. There is no procedure for application, the only definite criteria are the minimal criteria above, and nothing is publicly known until an appointee is announced. Appointment to federal courts was extensively formalised in 2007, except for the High Court, and those reforms were reversed by the next federal government. Some recent attorneys-general have stated that they were consulting widely—to include, for instance, Australian Women Lawyers, the National Association of Commonwealth Legal Centres and the heads of Australian law schools.[100] However, the nature of the attorney-general's consultations remains almost wholly discretionary.
Some appointments to the High Court have displayed clear political influence. Three early justices had been conservative politicians prior to their appointment as chief justice;[Note 50][101] and JusticesEvatt,McTiernan, andMurphy were allLabor party politicians at some stage in their careers prior to being appointed to the High Court by a Labor prime minister.[102]
Members of the Court are required to retire when they reach the age of 70.[103] This requirement was introduced by constitutionalamendment in 1977.[104] Previously, there had been no retirement age and SirEdward McTiernan had served for 46 years until being persuaded to retire at age 84. Retired members of the Court do not retain the title of 'Chief Justice' or 'Justice'.[105][106]
The High Court has seven justices—the chief justice and six other justices.
As of 2025[update] the High Court has had 57 justices, fourteen of whom have been chief justice.[107]
The first High Court bench consisted of three justices: Samuel Griffith, Edmund Barton, and Richard O'Connor.[112]
According to the contemporary press, among those considered and overlooked wereHenry Higgins,Isaac Isaacs,Andrew Clark,John Downer,Josiah Symon, andGeorge Wise.[113]
Barton and O'Connor were both members of the federal parliament's government bench. Each appointee had participated in the drafting of the Constitution. All three have been described as relatively conservative justices for the time, and were strongly influenced by law of the United States in their constitutional jurisprudence.[113]
In 1906, at the request of the Justices, two seats were added to the bench, with Isaacs and Higgins being appointed.
After O'Connor's death in 1912, an amendment was made to theJudiciary Act expanding the bench to seven, which took place the following year.
Following Isaacs' retirement in 1931, his seat was left vacant, and an amendment to theJudiciary Act reduced the number of seats to six. This, however, led to some decisions being split three-all.[114]
With the appointment of JusticeWebb in 1946, the court returned to seven seats, and has had a full bench of seven justices since.[115]
Only seven of the High Court's fifty-six justices have been women.
The first female appointee to the bench wasMary Gaudron (who was a justice from 1987 to 2003), the second wasSusan Crennan (who was a justice from 2005 to 2015), and the thirdVirginia Bell from 2009 to 2021.
As of October 2022, for the first time there is now a female majority of the justices on the current bench with justicesKiefel,Gordon,Gleeson, andJayne Jagot (as replacement forPatrick Keane)[116]
In 2017, Justice Kiefel became thefirst woman to be appointed Chief Justice.[117]
Michael Kirby was the first openly gay justice of the Court. He was replaced byVirginia Bell, who was the first lesbian justice on the bench.[118]
Twenty-eight appointees have been residents of New South Wales, twenty-five of which graduated fromSydney Law School. Sixteen have come from Victoria, eight from Queensland, and four from Western Australia. No resident of South Australia, Tasmania, or any of the territories has ever been appointed to the bench.
The majority of justices have been ofProtestant backgrounds, with a smaller number of aCatholic background. Two Jewish members have been appointed, SirIsaac Isaacs andJames Edelman,[119] making them the only members of the court to have a faith background other thanChristianity. However, many justices have refrained from commenting publicly upon their religious views.
Almost all judges on the High Court have taken silk in some form prior to their appointment, in the form of appointment toKing's Counsel (KC), Queen's Counsel (QC) orSenior Counsel (SC). The exceptions areStarke,McTiernan, Webb,Walsh, Kirby,French,Edelman andJagot.
Thirteen justices of the court previously served in a Parliament, however no previous parliamentarian has been appointed to the court sinceLionel Murphy in 1975.
Salaries are determined by the Remuneration Tribunal. The regular justices receive $551,880, while the Chief justice receives $608,150.[120][121][122] High Court judicial compensation is constitutionally protected from decrease during appointment.[123]
The court typically sits for two weeks for each calendar month of the year, excepting for January and July in which no sitting days are held.[124]
Each judge engages associates for assistance in exercising their functions. The usual practice is to engage two associates simultaneously for a one-year term. Additionally, the chief justice is assisted by a legal research officer employed by the court library.
Associates have varying responsibilities; typically their work involves legal research, assistance in preparation for oral arguments,tipping in court during oral argument, editing judgments and assisting with extrajudicial functions, such as speech-writing.[125] Associates are typically recruited after having graduated from an Australian law school with grades at or near the top of their class.[126] Hundreds of applications for associate positions are received by the High Court annually.[126]
Many High Court associates have gone on to illustrious careers. Examples of former associates includeNicola Roxon,Adrienne Stone andGeorge Williams.
Three High Court justices served as associates prior to their elevation to the bench:Aickin toDixon,Gageler toMason, andEdelman toToohey.[127]
The High Court of Australia building is located on the shore ofLake Burley Griffin in Canberra'sParliamentary Triangle. The High Court was designed between 1972 and 1974 by the Australian architectChristopher Kringas (1936–1975), a director of the firm Edwards Madigan Torzillo and Briggs. The building was constructed from 1975 to 1980. Its international architectural significance is recognised by the Union of International Architects register of Architectural Heritage of the 20th Century. It received the Australian Institute of Architects Canberra Medallion in 1980 and the award for Enduring Architecture in 2007. The High Court was added to theCommonwealth Heritage List in 2004.[7]
The High Court makes itself generally available to the public through its own website.[128] Judgment alerts, available on the Court's website and by email with free subscription, provide subscribers with notice of upcoming judgments (normally a week beforehand) and, almost immediately after the delivery of a major judgment, with a brief summary of it (normally not more than one page). All of the court's judgments, as well as transcripts of its hearings since 2009 and other materials, are made available, free of charge, through theAustralasian Legal Information Institute. The court has recently established on its website an "eresources" page, containing for each case its name, keywords, mentions of relevant legislation and a link to the full judgment; these links go to the original text from 2000 onward, scanned texts from 1948 to 1999 and facsimiles from theCommonwealth Law Reports for their first 100 volumes (1903 to 1959); there are also facsimiles of some unreported judgments (1906–2002).[129] Since October 2013, audio-visual recordings of full-court hearings held in Canberra have been available on its website.[130]
![The No. 1 Courtroom, used for all cases that require a full bench of seven justices[131]](/mt/?noimg=&dark=on&url=http%3a%2f%2fen.wikipedia.org%2fwiki%2fFile%3aCourt_1_at_the_High_Court_of_Australia.jpg)
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The High Court of Australia is the highest court of appeal
Recommendation 19–1. The Attorney-General should consult with the Minister for Foreign Affairs and Trade regarding the feasibility of terminating the treaty between Australia and Nauru, which provides for certain appeals to be brought to the High Court from the Supreme Court of Nauru. If termination is considered feasible, theNauru (High Court Appeals) Act 1976 should be repealed.
This Wikipedia article was originally based onHigh Court of Australia, King Edward Tce, Parkes, ACT, Australia, entry number 105557 in theAustralian Heritage Database published by theCommonwealth of Australia 2004 underCC-BY 4.0licence, accessed on 20 May 2020.
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