High Court of Australia
The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation.
The High Court was established following the passage of the Judiciary Act 1903. Its authority derives from chapter III of the Australian Constitution, which vests it with the judicial power of the Commonwealth. Its internal processes are governed by the High Court of Australia Act 1979.
The court consists of seven justices, including a chief justice, currently Stephen Gageler. Justices of the High Court are appointed by the governor-general on the formal advice of the attorney-general following the approval of the prime minister and Cabinet. 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 called special 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 in Canberra since 1980, following the construction of a purpose-built High Court building, located in the Parliamentary Triangle and overlooking Lake Burley Griffin.
Sittings of the court previously rotated between state capitals, particularly Melbourne and Sydney, and the court continues to regularly sit outside Canberra.
Role
The High Court exercises both original and appellate jurisdiction.Sir Owen Dixon said on his swearing in as Chief Justice of Australia in 1952:
The broad jurisdiction of the High Court means that it has an important role in Australia's legal system.
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
Original jurisdiction
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, were conferred on the High Court by section 30 of the Judiciary Act 1903. While the conferral of constitutional matters might be removed by amending the Judiciary Act, section 75 and section 75 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; the Australian Law Reform Commission has described the reference to constitutional matters in section 76 rather than in section 75 as "an odd fact of history". The 1998 Constitutional Convention recommended an amendment to the constitution to prevent the possibility of the jurisdiction being removed by Parliament.
The word "matter" in sections 75 and 76 has been understood to mean that the High Court is unable to give advisory opinions.
Appellate jurisdiction
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. It may also hear appeals of decisions made in an exercise of its own original jurisdiction.The High Court's appellate jurisdiction is limited by the Judiciary 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.
Appeals to the Judicial Committee of the Privy Council
Appeals to the Privy 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.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, 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, and in 1985, in Kirmani v Captain Cook Cruises Pty Ltd, 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.
No certificate was required to appeal constitutional cases not involving inter se matters, such as in the interpretation of section 92, and thus the Privy Council regularly heard appeals against High Court decisions. 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. 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. In Parker v The Queen, Chief Justice Sir Owen Dixon led a unanimous judgment rejecting the authority of the House of Lords decision in DPP 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." The Privy Council overturned this by enforcing the UK precedent upon the High Court the following year.
Thirteen High Court judges have heard cases as part of the Privy Council. Sir Isaac Isaacs is the only judge to have sat on an appeal from the High Court, in 1936 after his retirement as Governor-General of Australia. Sir Garfield Barwick insisted on an amendment to Privy Council procedure to allow dissent; however, he exercised that capacity only once in an appeal from Guyana to the Privy Council. The appeals mostly related to decisions from other Commonwealth countries, although they occasionally included appeals from the supreme court of an Australian state.
Abolition of Privy Council appeals
Section 74 allowed parliament to prevent appeals to the Privy Council. It did so in 1968 with the Privy Council Act 1968, which closed off all appeals to the Privy Council in matters involving federal legislation. In 1975, the Privy Council 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.In 1986, with the passing of the Australia Acts by both the British and Commonwealth parliaments, appeals to the Privy Council from state supreme courts were closed off, leaving the High Court as the only avenue of appeal. In 2002, Chief Justice Murray Gleeson said that the "combined effect" of the legislation and the announcement in Kirmani "has been that 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".
Appellate jurisdiction for Nauru
On 6 September 1976, Australia and Nauru, which was newly-independent from Australia, signed an agreement for the High Court to become Nauru's apex court. It was empowered to hear appeals from the Supreme Court of Nauru in both criminal and civil cases, but not constitutional matters. 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. 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. Anomalies included the need to apply Nauruan law and customary practice, and that special leave hearings were not required.Nauruan politicians had said publicly that the Nauruan government was unhappy about these arrangements. 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. The High Court had remitted the case to the Supreme Court "differently constituted, for hearing according to law".
On Nauru's 50th anniversary of independence, Baron Waqa declared to parliament that "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". Justice Minister David Adeang said that an additional reason for cutting ties was the cost of appeals to the High Court. 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. 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. In 2022, Australia passed legislation which removed the possibility for reinstatement of the appeal pathway.