The High Court of Australia

In 1849 the Privy Council of the United Kingdom proposed that a national court should be established in Australia to hear appeals from supreme courts of the Australian colonies. There were many reasons for this, the main one being the time taken and enormous cost of travelling to the Privy Council in London. However, this was not proceeded with at the time.

The matter was brought up in discussions at the various constitutional conventions of the 1890s and it was agreed by delegates that a High Court would be established and that it would be the final court of appeal in Australia and that the process of appeals to the Judicial Committee of the Privy Council in London would be abolished.

However, the British government had other ideas and, whilst they agreed with and encouraged the Federation of the Australian colonies, they were insistent that the Privy Council would be the final court of appeal from all Australian courts.

In March 1900, at the invitation of Joseph Chamberlain, the British Secretary of State for the Colonies, Sir Edmund Barton, Alfred Deakin and other delegates travelled to London to present the draft constitution agreed upon by the constitutional conventions. (alongside is a photo of both Barton and Deakin). This document included abolishing appeals to the Privy Council. However, whilst they were able to reach agreement on all clauses the British government insisted that appeals to the Privy Council continue to be allowed, particularly from the colonial courts which, after federation, were to be known as state supreme courts.

After much lobbying, Joseph Chamberlain and the delegates reached a compromise under which cases involving the interpretation of the Constitution would be handled by the High Court of Australia with the right of appeal to the Privy Council being allowed in all other cases. The amended constitution was then passed by the British parliament and the Commonwealth of Australia Constitution Act 1900 was given royal assent on 9 July 1900. It was formally proclaimed on 17 September 1900 and entered into force on 1 January 1901.

Whilst the federal constitution came into force in 1901, it took three years for the parliament to establish the High Court. In introducing the bill, the then attorney general, Alfred Deakin, made an impassioned speech saying: “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.”

After much deliberation the new Parliament enacted the Judiciary Act 1903 and the High Court of Australia was established. Initially, only three people were to be appointed to the court. This was soon increased to five and then, in 1913, to seven. The first three people to be appointed to the court were Sir Samuel Griffith (pictured alongside), as Chief Justice and Sir Edmund Barton and Richard O'Connor as Justices. Sir Edmund had earlier resigned as Prime Minister and his colleague and fellow Founding Father, Alfred Deakin, became Australia’s second Prime Minister.

In 1968 the federal parliament enacted the Privy Council (Limitation of Appeals) Act which stopped any appeal to the Privy Council in regard to matters involving federal legislation and then in 1975, the parliament enacted the Privy Council (Appeals from the High Court) Act 1975 which closed off all methods of appeal from the High Court. In 1986, the federal and state parliaments all passed the Australia Act 1986 which blocked any further appeals to the Privy Council from state Courts leaving the High Court as the only avenue of appeal in Australia. A similar 1986 Act was also enacted by the British parliament.

Thus, after 85 years, the original intention of Australia’s founding fathers for the High Court to become not merely the highest court in the land but also the final court of appeal from all courts in Australia was realised. Today the court also exercises the power of judicial review over all laws passed by the federal, state and territories and is also the final authority on interpreting the Australian constitution.

The High Court first met in the Supreme Court of Victoria building but soon adopted the practice of moving around the country to hear cases. In 1980 a separate High Court building was erected in Canberra as its permanent home. The High Court Building in Canberra is pictured underneath.

 

QUESTIONS

  1. It is an interesting fact that the UK Privy Council agreed in principle to work toward a High Court in Australia and that this was agreed in the mid nineteenth century and yet it was not until the Australia Acts in 1986 that all appeals to the Privy Council were stopped and redirected to the High Court. Taking into account that the Privy Council and the Government are not one and the same can you give some reasons as to why the British government appeared reluctant to pursue what was being asked of them? (You might consider the internet for assistance especially in relation to the historical and current Privy Council’s purpose and membership.)

  2. In 1903, Alfred Deakin the Attorney-General gave a robustly positive speech to parliament in response to the considerable opposition voiced in debate prior to a vote being taken to pass a bill proposing the establishment of the High Court. Some of that speech is quoted in this study section. What, in your own words, is Deakin saying?

  3. The judges sitting in the High Court were originally three in number and then five and today there are seven. Why do you think there is always an odd number of judges?

  4. The High Court of Australia is the ultimate legal appeal body. Its pronouncements are final - similar to the European Court of Justice in the EU, the Supreme Court in the UK etc. Why do you think that most countries have lower and intermediate courts and a top level final appeal court?

  5. Now that you have read a summary of the setting up of the High Court you will realise that most government initiatives come after much parliamentary discussion and that many MPs concur whist others disagree with the result. This is democracy. What are the main points in the long road to forming the High Court that show democracy at work?