Introduction and Chapter 1 — Early Years


From The High Court of Australia 1903-2003 by Crispin Hull

A significant and symbolic start

The first reported case considered by the High Court of Australia — in November 1903 — was about a telephone wire, which had fallen upon a cabman, injuring him and damaging his cab. The telephone wire was owned by the Commonwealth of Australia. The cabman was awarded £200 in the Supreme Court of New South Wales.

The case was a significant and symbolic start for the High Court. Here was an ordinary Australian seeking redress against the Commonwealth. The High Court has been dealing with the rights and duties of Australians and applying the rule of law to its national and State governments ever since. Further, the case was an appeal from the Supreme Court of a State in the Australian federation. Three years before these States had been colonies of Britain and their citizens’ final court of appeal had been the Privy Council in London.

The case had further significance. The events giving rise to it and the decision by the Supreme Court of New South Wales took place before the High Court came into existence. The Australian Constitution, which came into force on 1 January 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 constitute the court or provide for the detail — such as the number of judges and the procedural rules — until 25 August 1903. The Commonwealth argued that as the High Court did not exist at the time of the decision being appealed from, it had no jurisdiction to hear the appeal. No, said the High Court. The High Court’s jurisdiction comes from the Constitution itself, not from an Act of Parliament.

At the outset, therefore, the High Court made it clear that its authority comes from the Constitution and that the Court itself is the authority for interpretation of that Constitution. That it did this in a case brought by an ordinary cabman tells us something further. 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, state 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.

The creation of an Australian court

The creation of the court has to be seen in the context of the birth of the nation. When the colonists arrived in New South Wales from Britain in 1788, they brought with them English law. In the next 70 or so years they carved the continent into six separate colonies. By the last two decades of the 19th century, each of these colonies was largely self-governing, though Britain remained responsible for foreign affairs and defence and could negate any colonial legislation by legislation of its own. Significantly, appeals could be brought 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. “One continent for a nation, one nation for a continent,” was one of the federationists’ catch cries. In that decade several constitutional conventions were held to draft a new Constitution for the new nation — the Commonwealth of Australia. The Constitution would decide the 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 in those conventions concerned the creation of an Australian court.

Delegates argued vociferously over the role of the court and the drafting of the words in the Constitution to create it. Appeal to the Privy Council was one of the most contentious issues. The arguments were typical of the ambivalent nature of the constitutional transition. Federation was to create a nation and the act of Federation would — as a practical, political matter — have to be approved by the people of each of the colonies. But as a legal and constitutional matter, the federation could be achieved only through the passage of legislation through the British (or Imperial) Parliament. The court the Constitution created, therefore, could be seen as either a new national court or as part of an imperial system of courts whose apex was in London. Certainly, British commercial interests were keen to retain appeals to the Privy Council and some delegates saw a final appeal to the Crown as a birthright. But others were keen on a national court.

The result was an ingenious combination of words 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 went hand-in-hand with a change in attitude and interpretation which saw the Australian Constitution not as an Act of the Imperial Parliament and deriving from the authority of that Parliament, but as a document approved by the people of Australia in the referendums leading up to federation.

The Constitution provided for appeals to the Privy Council (if the Privy Council granted leave to appeal) but permitted Parliament to restrict the matter in which an appeal could be sought. Further, the Constitution provided that appeals from the High Court on disputes over the limits of State and Commonwealth power could only go to the Privy Council if the High Court gave permission. The High Court after just one case simply never gave permission again. According to Professor Geoffrey Sawer in Australian Federalism and the Courts, that case was in 1912 (Colonial Sugar Refining Co Ltd v Attorney-General (Cth)(1912) 15 CLR 182) and the Privy Council did not answer the constitutional questions put to it. In 1975 the Australian Parliament abolished appeals to the Privy Council in matters of federal jurisdiction followed by the abolition of appeals directly from State courts in 1985 and 1986. The latter was done by Acts of both the Parliament in London and the Commonwealth Parliament at the request of each State. So for nearly two decades the High Court has been at the apex of a national Australian court system.

A judiciary to interpret the laws

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 gave the High Court two major functions which have been immensely powerful in shaping the Australian nation:

o To hear and determine appeals from the highest State courts

o To interpret the Constitution

The latter came about because the Constitution gave the Commonwealth Parliament the power to give the High Court this function which it did in 1903.

The Constitution also gave the High Court other functions – most importantly to hear controversies between the States, matters where the Commonwealth is a party and matters involving treaties — and gave Parliament the power to give it jurisdiction in matters arising under laws passed by the Commonwealth Parliament.

In looking at the Court’s role in interpreting the Constitution, it is worth looking at the system of governance it provided.

The Constitution provided for a Parliament comprising the House of Representatives and the Senate 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 Executive is headed by the Governor-General who appoints the ministers, including the Prime Minister, almost invariably from the political party which holds the majority in the House of Representatives.

The Constitution lays out the powers of the Commonwealth Parliament. It lists those powers in section 51, including things such as: international affairs; defence; international and interstate trade; immigration; taxation; corporations; currency; banking; insurance; bankruptcy; interstate 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 are left with everything else. Moreover, the listed powers are not exclusive. It means the States can pass laws in areas of listed Commonwealth power. But if the Commonwealth passes a law within its listed powers the State law, to the extent it is inconsistent with the Commonwealth law has to give way. A good example is marriage and divorce law. Each State had its own marriage and divorce law at Federation. Only when the Commonwealth legislated in the area from the late 1940s on did the State laws become inoperable and Commonwealth law alone determined marital status.

In 1901 it appeared as if the Commonwealth’s powers would be lesser because they were listed, implying limits. On the other hand, the States appeared to have wide powers because they got everything that was not legislated upon by the Commonwealth under its defined list, implying a wide range. But the story of the High Court includes the story of how, over the decades, it interpreted those powers in a way that continued to increase the influence of the national Parliament at the expense of the States. Some of the most significant cases in which it did that are discussed in Chapters 2 and 5.

The role the Constitution gave the High Court in hearing appeals from the State Supreme Courts has contributed to national cohesion. Different States have different statutes applying different rules in different ways. That is the nature of a federation. However, a great deal of statute law in the various States is expressed in similar ways as the State legislatures address similar problems in similar ways. In the common law tradition, the law is built up case by case – both in relation to the interpretation of statutes and in the building up of a body of common law. There was a danger that different State Supreme Courts might interpret similar statutes in different ways or develop the common law in different ways. That would have created uncertainty and commercial difficulty as people tried to adjust their affairs to meet different sets of laws – particularly people engaged in transactions across State borders. The High Court has played a pivotal role in resolving different interpretations of the law and in developing the law on a national basis. Indeed, one of the main factors in whether the High Court decides to entertain an appeal is whether there are conflicting or inconsistent rulings in State Supreme Courts. It has meant that State Supreme Courts can look to High Court judgments to maintain national consistency and in this way a body of Australian common law has been established. And that has been one of the High Court’s greatest achievements in its first century.

Chapter 1 — The Constitutional Conventions and the Court’s First Years

The idea of a court of appeal

Attempts from 1860 to 1880 were made to create an Australasian Court of Appeal to reduce the need for litigants to go to the Privy Council in London with its attendant costs. The attempts came to nothing because of inter-colonial rivalry. An Inter-Colonial conference in 1880 went as far as drafting for the Imperial Parliament a Bill for an Australian Court of Final Appeal made up of a judge from each colony with a term of one year. The court would sit in the various colonies by rotation, according to the preponderance of cases. But under the proposal, the right of appeal to the Privy Council direct from a colonial Supreme Court was preserved. This proved too contentious for the conference and the Bill died.

The idea of a court of appeal at the head of the colonial Supreme Courts emerged again during the Australian constitutional conventions. An Australasian Federation Conference was held in Melbourne in February 1890, comprising 13 delegates – all politicians — from the six Australian colonies and New Zealand. The Melbourne conference delegates persuaded their Parliaments to convene a National Australasian Convention. It was held in Sydney in March and April 1891 and comprised seven delegates from each colony and three New Zealand observers.

The Sydney Convention generated a draft Bill on the Constitution, mostly the work of Sir Samuel Griffith, Premier of Queensland. It included a provision for Parliament to establish a Supreme Court of Australia and other Federal courts. Unlike the United States Supreme Court, the proposed court would hear appeals on general matters from the State Supreme Courts. Parliament could also give it power to hear matters arising under the Constitution; controversies between the States; matters arising from Commonwealth law and matters in which the Commonwealth was a party. Importantly, the court would not be composed of judges from the State Supreme Courts, but be separately appointed. These elements of the Bill survived later drafting. Under the Bill, Appeals to the Privy Council in London were severely curtailed. An appeal from a State Supreme Court to the Australian Supreme Court was to be final. Further, the Parliament was empowered to end appeals directly from the State Supreme Courts to the Privy Council. Only the Queen herself could give leave to appeal to the Privy Council from the Australian Supreme Court. In effect, the new court was to take the place of the Privy Council as the final court. The provisions on appeals to the Privy Council did not survive later amendment.

The delegates to the Sydney Convention returned to their colonies with the Draft Bill as adopted by the convention. But then the process slowed. In 1895 and 1896 all the colonies except Queensland passed enabling Acts for a further convention. All attending colonies except Western Australia held popular elections for convention representatives to the Australasian Federal Convention, though nearly all delegates were politicians. The convention was held in three sessions in 1897 and 1898. The first was in Adelaide in March and April 1897; the second in Sydney in September 1897 and the third in Melbourne from 22 January to 17 March 1898.

By now Griffith had become Chief Justice of the Supreme Court of Queensland, besides which Queensland had no delegates. Nonetheless, Griffith was active behind the scenes. He corresponded with many delegates and sent detailed comments to Robert Garran, secretary of the drafting committee.

At the 1897-1898 sessions, the leading federalist lawyers were convinced that there should be no change to the provisions in the Sydney Convention’s Draft Bill stopping appeals from the Australian Supreme Court to the Privy Council. They were up against some spirited opposition. A New South Wales delegate argued that, “To take away from the people of this country the right of appeal to the throne is to commence to sap the foundations of a union under the Crown. . . . There can be only one final appellate court in the Empire, and that I believe should be the Privy Council of England.” That view was supported by the main commercial interests, including the agricultural interests, in the colonies who petitioned all the constitutional conventions. A typical petition to the conferences was that of 11 March 1898, when Alfred Deakin said, “I have the honour to present two further petitions in favour of retaining the right of appeal to the Privy Council. One is from the Royal Agricultural Society of Victoria, and the other from the Ballarat Agricultural Society.” They were some of many. Deakin himself opposed appeals to the Privy Council, but he was obliged to present the petitions.

At the Adelaide session, a significant change from the Sydney draft was the use of the name “High Court”, rather than “Supreme Court of Australia”. But no significant changes were made to the provisions about appeals to the Privy Council in the Adelaide, Sydney or Melbourne sessions. The Draft Bill as it left the Melbourne session in 1898 had the High Court as the supreme court with no appeals to the Privy Council unless the Queen herself granted special leave, and even then there was to be no grant of special leave if the matter involved the interpretation of the Commonwealth Constitution of the Constitution of a State.

That draft was approved at referendums in each colony between 1898 and 1900, though there were some changes to other provisions inserted at a Premiers Conference in 1899. The Bill was then presented to the Imperial Parliament in London. But the restrictions on appeals to the Privy Council had been removed and in their place was a clause with wider appeal rights to the Privy Council. The Minister responsible for the passage of the Bill was the Secretary of State for Colonial Affairs, Joseph Chamberlain. The Australian delegates who had taken the draft Constitution to London protested. Chamberlain and his law officers agreed to a compromise, the present provisions of the Constitution, particularly section 74. These left it open for the Queen herself to grant special leave in any case. They open appeal rights directly from State courts to the Privy Council. And they allowed a right of appeal in constitutional matters, except “inter se” matters (those which affected the limits of the powers of the Commonwealth and States). It was not until 1986 that the last of these was removed.

[Heading – to be decided]

The concept of having an Australian federal supreme court – to be called the High Court of Australia – survived the conventions that drafted the Constitution and the referendums and British legislative processes that put the Constitution into force, even if changes were made to appeals from that court to the Privy Council. However, that alone did not guarantee the court would come into existence. It would require legislative action by the new Parliament to constitute the court and initiate its rules of practice and procedure and executive action by the new Government to appoint judges.

A hundred years later – with the High Court playing such a significant part in national life – it seems astonishing that the opposition to the setting up of the Court within the Australian Parliament was so strong as to almost defeat it. Feeling among key lawyer parliamentarians Patrick Glynn, Henry Higgins and John Quick was that the Court would be wasteful; that it would not have enough work to do; that while appeals to the Privy Council remained it would be humiliated into a subordinate role; and that the State courts could easily carry out the function of constitutional interpretation. Other opponents thought that the measure was only one to feather the nest of the legal profession.

Attorney-General (and later Prime Minister) Alfred Deakin was the rescuer. He steered the Judiciary Bill and the High Court Procedure Bill through the Parliament. At times the Bills survived by a single vote as they went through the House of Representatives. Deakin persuaded the House of the need for a court. He told the House in a three-and-a-half hour second reading speech,

“The federation is constituted by distribution of powers, and it is this court which decides the orbit and boundary of every power . . . – the competent body which is able to protect the Constitution, and to oversee its agencies. That body is the High Court. It is properly termed the keystone of the federal arch. . . . It enables the Constitution to grow and be adapted to the changeful necessities and circumstances of generation after generation that the High Court operates.”

One hundred years later these are prescient words. Deakin foresaw that the general language of the Constitution would give rise to a large area of disputable territory opening a field for exact definition and interpretation that only a national court could provide. He argued that the terms of the Constitution setting out the role of the court were a virtual instruction to the Parliament to establish the court and appoint judges in the first place. To do otherwise would be a breach of constitutional faith. Despite Deakin’s eloquence, the opponents of the Court managed to reduce the number of judges from five to three and to curtail their salaries and retirement benefits.

The Bill passed in August 1903, the first three judges were appointed shortly thereafter and the Court had its first brief formal sitting on 5 October 1903.

Those who argued the Court would not have enough work to do or would be regarded as an inferior court in the face of the Privy Council have been proved utterly wrong. Since its inception, the Court has had more than enough work to do. Indeed, there has always been a long queue of citizens, corporations and governments pleading with the Court to give them leave to appeal or filing causes before the Court to exercise its original jurisdiction. And, far from inferior, the High Court of Australia has an excellent reputation in the common law world for the quality of its jurisprudence.

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