Chapter 3 – The Itinerant Court
From The High Court of Australia 1903-2003
by Crispin Hull
The Constitution says, “The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia . . . .”
The High Court was an abstraction which required fleshing out by the Commonwealth Parliament and Executive. This was achieved with the passing of the Judiciary Act and the appointment of the first judges in 1903. But even then no-one had given serious practical attention to a place or places where the judges of the Court might sit or where they and their staff might work. The great champion of the High Court, Attorney-General Alfred Deakin, thought it essential that the Court should sit in all the capitals or even in other cities. He told Parliament: “I do not mean a High Court that is to sit at the Federal Capital alone, or at a State capital never to be seen outside it. . . . I mean a court whose judges will undertake circuits.”
That view was reflected in the Judiciary Act 1903 (Cth) which set up the Court. It said: “Sittings of the High Court shall be held from time to time as may be required at the principal seat of the Court and at each place where there is a District Registry.”
The first sitting of the High Court was on 6 October 1903, in the Banco Court of the Victorian Supreme Court. The High Court used that part of the building until a separate building was completed in Little Bourke Street, Melbourne, at the beginning of 1928. It was two storeys and was designed by John Smith Murdoch, the Chief Architect of the Commonwealth, in similar style to Old Parliament House, which he also designed. In Sydney, the Court occupied a part of the Central Criminal Court at Darlinghurst until it occupied a building in Taylor Square jointly with State Courts in 1923. The Commonwealth leased its space from the New South Wales State Government which lost the rent when the High Court moved to Canberra. The conditions in Taylor Square were described by one barrister as “frightful, cramped hot and stuffy. . . . There was no library of any consequence”. The library in Melbourne was better, but still limited. In other capitals the court had to rely on State Supreme Courts to provide courtrooms, offices and library facilities. So for its first 80 years the Court had no permanent home with adequate courtrooms, library and chambers for Justices.
The Court’s itinerant nature drew both applause and attack from within and outside the Court. It was a strain on the judges, particularly in the days before air travel. And it was costly. But it meant that litigants were spared the expense of sending their lawyers to Sydney or Melbourne or engaging new lawyers in those cities. It also gave a sense of national legal unity.
Early on, though, the court’s travels became a source of friction. In 1904, Sir Josiah Symon, a free-trade senator from South Australia, was appointed Commonwealth Attorney-General. Symon wanted an appointment to the High Court Bench, but did not get it. He took his disappointment out on the existing judges by questioning and curtailing expenses. He denied expenses for staff and fitting out chambers and ordered that travel expenses should be computed from Melbourne, even though the Justices had established residences in Sydney. Symon argued that the Court should sit where the seat of government was – Melbourne, and the judges should be resident there. The judges jointly wrote to Symon explaining how the travelling system had come about:
“The present system or policy of hearing appeals in the States in which they arise was adopted after a conference between the then Prime Minister, Mr Deakin, and the then Attorney-General, Mr Drake, and ourselves, before the issue of our commissions. It was recognised there was no precedent for the proposal . . . that it would cause considerable personal inconvenience to ourselves and involve considerable expenditure for travelling expenses. It was thought right . . . to give all litigants the full advantage of appeal to an Australian Court by making it possible for those whose cause arose at places other than the principal registry to employ before the court of appeal the same counsel and advisers who had conducted the case in the court below without putting them to the additional expense of sending those advisers and counsel to a hearing at the Principal Registry, with the alternative of instructing, at probably equal or greater expense, new counsel and new advisors not familiar with the case.’’
Symon was not satisfied. He revoked the Order in Council under which travelling expenses had been paid and he proposed further limits on staff and facilities. In response, the judges suspended a sitting planned for Melbourne. Symon demanded an explanation and the judges ignored him. Chief Justice Griffith told Prime Minister George Reid that unless assurances were given on travel, the judges would go public with their complaint. Reid referred them back to Symon – an unacceptable gesture. So on 26 May 1905, the judges made a statement from the Bench decrying “the interference with them in the discharge of their duty”. Judges could deal with attacks from private persons, but in the case of attacks from the Executive Government “their only protection lies in publicity”. They said, “We did not resort to this means until the position had become intolerable.” Fortunately for the judges, who were then appointed for life, politicians come and go. The Reid Government lost office two months later and the new Attorney-General in the second Deakin ministry was Isaac Isaacs who quickly resolved the matter by saying that the Judiciary Act had envisaged that the Court should sit in each State capital and so the expenses for doing that would be paid. The Court resumed its pattern of sitting in Hobart in February, Brisbane in June, Perth in September and Adelaide in October if the caseload warranted it.
But not all judges agreed with the practice. The issue arose again when the Court agreed to suspend sittings in Adelaide, Brisbane, Hobart and Perth in the early years of the Great Depression. Then Attorney-General and later Chief Justice Latham thought the cessation unfortunate. “In distant states there is very little to remind the people of the existence of the Federal Government, except when they pay taxation,” he wrote in a departmental memo in 1933. Justice Starke disliked the travel. He said, “The movements of the court mean nothing to the public anywhere. They may convenience and profit a few professional men, but they greatly inconvenience the court and do not tend to the efficient administration of justice.” Justice Sir Dudley Williams disliked the travel. Justices Rich and Isaacs enjoyed it.
Dixon thought that if there was only one case in a distant capital, the sitting should be abandoned, but they should never be abandoned if there were three or more. If only two, he thought the Court should be guided by the circumstances of the cases. He said in 1952 when sitting as Chief Justice in Perth for the first time, “I believe it is essential that this court should continue its itinerant habits for a very long time. . . . It is of first-class importance that the litigants in the capital where their cases arise should have the advantage of the services of their own counsel, and the advantage of seeing for themselves how their cases fare.”
As Attorney-General and after his appointment as Chief Justice in 1964, Garfield Barwick made it clear that he thought that once the court moved to Canberra its sitting in State capitals should end.
But the construction of a permanent building for the High Court in Canberra would not end hearings in other capitals – particularly as travelling had become easier by 1980 and the sentiment against centralism continued. The new building gave the Court, its Justices, library and registry staff permanence and better facilities, but since moving, has continued sittings in other capitals. About two-thirds of the Court’s sittings are in Canberra. It sits once a year in Adelaide, Brisbane, Hobart and Perth – usually for between two and four days each. And it sits regularly in Sydney and Melbourne to hear applications for special leave. In Adelaide and Hobart the court uses space provided by the State Supreme Courts and in the other capitals it uses the facilities of the Commonwealth Law Courts buildings. Since moving to Canberra, the Court has been able to use technology to increase its reach to distant States. In 1989 it conducted its first hearing by video link. Now the Court regularly uses video links for special leave applications with counsel making their submissions from another city. Indeed, Darwin has been included in the cities from which the court has heard special leave applications via video.
Since moving to Canberra, the Court has used internet technology to great advantage in overcoming the tyranny of distance. Since 1998, within minutes of any judgment being handed down it is available on the internet throughout Australia and, indeed, the world.