Queen Elizabeth at the opening of the High Court of Australia

History of the High Court

Beginnings

Opening-Ceremony-May-1980Although the High Court of Australia was established in 1901 by Section 71 of the Constitution, the appointment of the first Bench had to await the passage of the Judiciary Act in 1903.

The first sitting of the High Court took place in the Banco Court of the Supreme Court building in Melbourne on 6 October 1903. It was a distinguished Bench, comprising three people who had been prominent in the Federal movement. They were:

  • The Chief Justice, Sir Samuel Griffith, former Premier and former Chief Justice of Queensland.
  • Sir Edmund Barton, the first Prime Minister of Australia and Leader of the Constitutional Conventions which led to Australia becoming a Federation in 1901.
  • Richard Edward O'Connor, a former Minister of Justice and Solicitor-General of New South Wales and the first Leader of the Government in the Senate.

There was an opinion held by many at the time that the High Court would prove to be a redundant tribunal, with little work to do and no real status. However, the initial Bench quickly set about proving wrong these prophecies. From their first judgments, the Justices stamped the authority of the High Court over the State Supreme Courts and showed that the Court was a powerful and necessary arm of the newly-created Commonwealth of Australia. Using their own construct of the Constitution and the Judiciary Act, they took upon themselves a wide appellate jurisdiction, thereby increasing significantly the workload of the Court.

The Court quickly gained an international reputation for judicial excellence. Such was its success that the workload quickly became too much for three Justices. In 1906, the Justices made representations to parliament for an increase in their number. Later that same year, two more Justices were appointed - Sir Isaac Isaacs and Henry Bournes Higgins.

In November 1912 Justice O'Connor died in office. At the same time, the workload of the High Court had grown to the extent that it was stretching the capacity of five Justices, so Parliament agreed to again increase the Bench by two. In February 1913 Frank Gavan Duffy was appointed to replace Justice O'Connor, and the following month Charles Powers and Albert Bathurst Piddington were appointed to increase the High Court Bench to seven Justices.

Gavan Duffy's appointment was warmly welcomed by the legal profession but there was considerable disquiet about the appointment of Justices Powers and Piddington. Criticism centred around their abilities as lawyers: the Bars of New South Wales and Victoria even went so far as to withhold the customary congratulations on their appointment.

Justice Powers ignored the criticism and remained on the High Court Bench until 1929. Justice Piddington, however, resigned on 5 April 1913 without taking his seat on the Bench.

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The Great Depression and World War II

In 1929 the Great Depression gripped the world. In July of that year Justice Powers retired, but the vacancy was not immediately filled. Then, in March 1930 Chief Justice Knox retired. Sir Isaac Isaacs was promoted to the position of Chief Justice, leaving a Bench of just five. The Great Depression had caused the workload of the High Court to decrease, and consequently there was a view in some areas of government that, in the interests of economy, the two vacancies on the High Court Bench should not be filled.

In December 1930, however, the Labor Government filled both vacancies. Doctor Herbert Vere Evatt was the first appointee. At age 36, he was, and remains to this day, the youngest person ever appointed a Justice of the High Court. The second appointee was Edward Aloysius McTiernan, who also set a record: he served on the Bench for almost 46 years, retiring in September 1976 at the age of 84.

In January 1931 Chief Justice Isaacs retired to take up his appointment as Governor-General. Sir Frank Gavan Duffy was promoted to Chief Justice but, due to the financial stringencies of the Great Depression, no appointment was made to restore the Bench to seven Justices. In 1933 Parliament amended the Judiciary Act which formalised the reduction in the number of Justices from seven to six. It wasn't until 1946 that, with the Great Depression and World War II over, the legislation was amended to restore the number of Justices to seven. The reasons given by the Government for the restoration were that the workload of the Court had increased and that the number of equally divided decisions was causing problems. Thus, in May 1946, Sir William Flood Webb was appointed to the Court. The Bench has remained at seven Justices ever since.

During World War II the High Court was called upon to determine many issues related to the extent of the Commonwealth's defence powers as prescribed in the Constitution. The results generally widened the Commonwealth's powers, in time of war or immediate threat of war, at the expense of the States. The situation was found to be different, however, during peace-time. In the famous "Communist Party Case" of 1951, for instance, the Court ruled invalid an attempt by the Parliament to invoke its defence powers (in light of the Korean conflict then in progress) to declare the Australian Communist Party an unlawful association.

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Developments in later years

During the 1960's the appellate and original jurisdiction work of the High Court had grown to burdensome proportions. Sir Garfield Barwick, both as a Minister in federal Parliament (1958-1964) and as Chief Justice of the High Court (from 1964), proposed a new federal superior court to free the High Court from much of this work. The proposal grew in strength in subsequent years and, in 1976, legislation was passed establishing the Federal Court of Australia.

Appeals to the Privy Council from decisions of the High Court were effectively ended by the combined effects of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975. However, a right of appeal to the Privy Council remained from State courts, in matters governed by State law, until the passage of the Australia Acts, both State and Federal, in the 1980s.

In 1977 the Constitution Alteration (Retirement of Judges) Act was proclaimed, ending the life tenure of High Court Justices. The Act required that all Justices appointed from then on must retire on attaining the age of 70 years.

In 1979 the High Court was given the power to administer its own affairs by the passage of the High Court of Australia Act 1979. This Act, which was proclaimed on 21 April 1980, prescribes:

  • The qualifications for, and method of appointment of, the Justices;
  • The administration of the Court's affairs under the Act, including the appointment, functions and powers of certain Court officers;
  • High Court Registry and procedure;
  • Methods of funding and control of the Court's finances; and
  • Reporting and accountability arrangements.

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Accommodation

In its early years, the High Court shared courtroom and registry facilities with State courts in Sydney and Melbourne. Separate facilities were eventually provided for the High Court in Sydney in 1923. In Melbourne, a special building for the Court was constructed and opened in 1928. The Principal Registry of the High Court was located in these Melbourne premises until 1973, when it was transferred to Sydney.

A national competition for the design of a permanent home, in Canberra, for the High Court took place in 1972-73. Construction of the building began in 1975 and it was opened by Her Majesty the Queen on 26 May 1980. The Court and its Principal Registry were immediately transferred to the new building and the first sitting in this location took place in June 1980.

NOTE: more information on the High Court building may be found at the High Court building

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Sitting practice

Today, most sittings take place in Canberra. Sittings are also scheduled in Sydney and Melbourne, usually on one day per month on an alternating basis. In addition, the Court continues the practice, established on its inauguration in 1903, of sitting in the capital cities of Queensland, South Australia, Western Australia and Tasmania once each year if there is sufficient business to warrant it.

Since 1989, the High Court has occasionally heard applications for special leave to appeal by video link with Brisbane, Adelaide and Perth. This method of hearing, which is designed to save litigants the cost of flying their counsel to Canberra, is becoming more and more popular.

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Further reading

For those interested in reading more about the history of the High Court and its impact on Australian law, a selected list of books on those subjects is given below.

Bennett J.M, Keystone of the Federal Arch (Canberra 1980): AGPS

Blackshield, Tony, Coper, Michael and Williams, George (eds), The Oxford Companion to the High Court of Australia (Melbourne, 2001) Oxford University Press

Coper, Michael, Encounters with the Australian Constitution (North Ryde 1987): CCH

Deakin, Alfred, The Federal Story (Melbourne 1944): Melbourne University Press

Dixon, Sir Owen, Jesting Pilate (Melbourne 1965): Law Book Company

Else-Mitchell, Mr Justice, Essays on the Australian Constitution (Sydney 1961): Law Book Company

Galligan, Brian, Politics of the High Court (St Lucia 1987): University of Queensland Press

Howard, Colin, The Constitution, Power and Politics (Melbourne 1980): Fontana

Hull, Crispin, The High Court of Australia: Celebrating the Centenary 1903-2003 (Sydney, 2003) Thomson

La Nauze, J.A, The Making of the Australian Constitution (Melbourne 1972): Melbourne University Press

Lee, H. P. and Winterton, George (eds), Australian Constitutional Landmarks (Cambridge, 2003). University Press

Menzies, Sir Robert, Central Power in the Australian Commonwealth (2nd edn, Melbourne 1968): Cassell Australia Ltd

Sawer, Geoffrey, Australian Federal Politics and Law 1901-1929 (Carlton 1972): Melbourne University Press

Sawer, Geoffrey, Australian Federal Politics and Law 1929-1949 (Carlton 1974): Melbourne University Press

Solomon, David, The Political Impact of the High Court (Sydney 1992): Allen & Unwin

Zines, L. ed, The High Court and the Constitution (4th edn 1997): Butterworths

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