Today we are marking the centenary of the High Court of Australia almost three years after the centenary of federation itself.
Why the delay?
The Australian Constitution which came into force on January 1, 1901, provided that, “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia’’, but the new Federal Parliament did not get around to passing legislation to provide for the detail – such as the number of judges and the procedural rules — until August 25, 1903, with the passing of the Judiciary Act.
The Act was steered through Parliament by Attorney-General Alfred Deakin, who referred to the High Court as “the keystone of the federal arch”. Opponents decried it as too expensive and said it would not have enough work to do. The state courts could easily hear matters arising under federal law. But Deakin prevailed.
It was a couple of more months until the justices were appointed and the court was ready to sit on October 6. On that occasion in dealt with a few procedural matters. It heard its first its first case in November.
The creation of the court has to be seen in the context of the birth of the nation. When the colonists arrived from Britain in 1788, they brought with them the law of Britain. In the next 40 years they carved the continent into six separate colonies. By the last two decades of the nineteenth century, each of these colonies was largely self-governing, though Britain remained responsible for foreign affairs, defence and international trade and a right of appeal lay to the Privy Council in London from the courts of the colonies.
In the last decade of the 19th century, momentum grew for the federation of the six colonies into a single nation. Several constitutional conventions were held to draft a new Constitution, which would lay down critical question of the division of powers between the new national Parliament and Government and those of the colonies, which would become states in the new federation. A major question was the creation of an Australian court.
Delegates argued vociferously. Would it be a new court at the apex of a new national system of courts or would it be part of an imperial system of courts with the final say in London? Certainly, British commercial interests were keen to retain the final legal say in London and some delegates saw a final appeal to the Crown as a birthright. Others were keen on a national court.
The result was some sections in the Constitution that gave the appearance that the High Court of Australia was in a court structure which had the Privy Council at its head, but which provided the groundwork for the High Court to develop into a supreme national court. That development came with a change in attitude and interpretation which saw the Australian Constitution not as an Act of the Imperial Parliament and deriving from the sovereignty of that Parliament, but as a document approved by the people of Australia in the referendums leading up to federation and therefore founded in the sovereignty of the people.
Over time appeals to the Privy Council were reduced and finally abolished in 1986.
The Constitution laid out the structure of governance for the new nation. In doing so it also set out the role – or jurisdiction – of the High Court
The Constitution provided for a Parliament comprising the House of Representatives and the Senate of senators from each state to make the laws, an Executive of ministers to administer and execute the laws and a judiciary to interpret the laws and apply them in cases that come before it.
The Constitution lays out the powers of the Commonwealth Parliament. It lists those powers in Section 51, including things like: international affairs; defence; international and interstate trade; immigration; taxation; corporations; currency; banking; insurance; bankruptcy; industrial disputes; copyright and patents; postal, telegraphic, telephonic, and other like services; lighthouses; astronomical and meteorological observations; quarantine; fisheries; census and statistics; weights and measures; marriage and divorce; and pensions. The States get everything else.
The Constitution gives the High Court original jurisdiction and provides that the Commonwealth Parliament can give it additional jurisdiction.
It now has three major roles:
1.
To interpret the Constitution, particularly determining the limits of the powers of the Commonwealth and the states. The Commonwealth can only legislate with respect to matters set out in the Constitution. If it goes beyond its powers, the High Court can rule its legislation invalid. Similarly, state legislation can be ruled invalid if it is inconsistent with valid Commonwealth legislation or strays into areas the Constitution has given exclusively to the Commonwealth.
2.
As the final court of appeal in all matters begun in state courts. In these cases, there is no right to appeal. The High Court must grant special leave to appeal. It only does so in cases of major importance or where courts in different states have ruled inconsistently.
3.
As the final court of appeal from the Federal and Family Courts – both courts created by Commonwealth legislation.
In 1901 it looked like the Commonwealth’s powers would be limited because they were listed and that the States would have wide power because they got everything that was not listed. But the story of the High Court includes the story of how, over the decades, it interpreted those powers in a way that ever increased the power of the national Parliament at the expense of the states. (see article on major cases).
The High Court might seem to be an all-powerful interpreter of the Constitution with the authority to tell governments what they can do and what they cannot do. But it is constrained. It can only deal with matters that come before it – disputes between citizen and citizen; citizen and government and government and government. It cannot, of its own motion, declare what the law is or what are the limits of a government’s power. It can only authoritatively declare the law sufficient to decide the case before it, and no further.